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Axel Leblois

  The Access Line

09/26/2009

Interview with Ambassador Singh, Honorary Advisor to the Director General of WIPO on the Visually Impaired Persons Initiative (VIP), Bangkok, August 2009

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Ambassador Singh

Axel Leblois (A.L.): Ambassador, thank you for your time today. Can you give us an update of the progress of the negotiations and initiatives regarding copyright issues for visually impaired persons?

Ambassador Singh (A.S.): The initiative was started in 2004, and was first put on the agenda of the Standing Committee on Copyrights and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) under the leadership of Chile allied with a couple of other countries. Then it went dormant for a variety of reasons.  Last year, in August 2008, the World Blind Union (WBU) general assembly in Geneva raised the issue.  It came out spurred by a growing demand for a thorough look at copyright exemptions and limitations. With the help of the new Director General of WIPO, several of us secured the support of several member states and a specific resolution was passed in November 2008 requesting that WIPO take on this issue and set up a special process to take it further.

Then, last January, the first stakeholders’ platform meeting took place, followed by a second one in April 2009, and then another meeting in July 2009. So under WIPO’s leadership, we have made some progress.

A.L.: Could you give us some details about the process in place?

A.S.: In the meantime, the WBU had formulated and circulated the draft of a treaty that was presented for consideration by Brazil, Ecuador and other member countries at the May 2009 meeting of the SCCR.  This document thus became an official draft treaty to be assessed and discussed. The stakeholders’ platform is looking at its technical aspects, and I believe there is a growing convergence on some issues.

Two separate working groups have been set up to address legal and technology issues:

One is working on defining the rules for “Trusted Intermediaries”. We need to agree on those rules to ensure the availability of rights for digital material for the blind, but also to make sure that those rights are respected.  Trusted Intermediaries can be libraries, institutes, NGOs etc.  A draft was prepared on the basis of which a testing and accreditation process would be defined for Trusted Intermediaries. There will be some pilots in developing countries so that the effectiveness of those rules can be checked.

The second group is working on technology for publishers, interoperability issues and application design.   There has been some progress there as well, and the next meeting will take place in November to continue reviewing those.

A.L.: How do you see the work progressing?

A.S.: We need to marry the technical and the legal process. It is very important that those two progress simultaneously: if you have defined a solid legal framework, but it does not deliver the end result, then there is a gap, and you have to start all over again! We will both reach agreement on technical aspects and a consensus on the rules for trusted intermediaries.  Everyone has to remain flexible: for example, we expect some modifications to the proposed treaty to accommodate some technical changes or make provisions for future changes. We have to define a legal structure that leaves opportunities open for technical evolution and innovation. 

This is and will remain essentially a Member State driven process. The mandate is given by them and WIPO only plays the role of the facilitator and reports back to them. We are hopeful that the Member States will be able to work towards a consensus, but the outcome would have to be negotiated by them.

A.L.: Article 30.3 of the Convention on the Rights of Persons with Disabilities stipulates that “States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to “cultural materials””. Has this article been discussed within WIPO?

A.S.: This particular article has not been discussed as such, but a broad reading of it is an inclusive reading. It is very difficult to say that some material is not “cultural material”, and in that sense, it is not inhibiting, although it can lend itself to a more narrow interpretation. There is an issue there that needs to be addressed. Technical material, engineering texts, all of this can be considered as “cultural” as it contributes to the quality of life.

More generally speaking, there is no shortage of justification under international law to allow for copyrights exemptions or limitations, but how those exemptions and limitations will actually function in the larger area of intellectual property still needs to be defined. We have to be aware that there are rights holders on the other side!

A.L.: Which countries would you say have progressed the most in that area, and could provide some blueprint for the future?

A.S.: Judith Sullivan did a study four years ago, and found out that 54 countries have some form of legislation, that varies depending on the local context. It really shows that each country has to adopt its own legal framework. What certainly helps is the commitment of many countries to the Convention on the Rights of Persons with Disabilities, which now becomes a founding stone. Legislations and regulations will have to match the Convention’s dispositions.

A.L.: Are there countries with specific useful experience?

A.S.: Generally, developed economies have a more evolved body of regulatory and legal framework. But here are several developing countries that are focusing on these issues and have some form of legislation already in place. It is difficult to declare that one is better than another. What matters more is whether regulations have been implemented effectively or not. As a rule, the implementation seems more effective in countries where there is democracy, allowing for an open and transparent process, and for some pressure and support from civil society to affect change; in other words where the political system is more bottoms up that top down.

A.L.: Is the European Union participating in those discussions as a single body?

A.S.: Technically, each EU member country has its own voice, though the EU is represented in the discussions as such. And within the EU, some countries are more inclined towards soft regulations, while others consider that a binding legal framework would ensure more efficiency. This is the beginning of a process and we will have to go much further. We must not give up on getting a consensus, as we do not want a confrontation on these issues.

A.L.: What kind of timeline do you envision?

A.S.: This would be more of a prophecy! But we are optimistic, partly because of the Convention being signed and ratified by so many. There is definitely moral leverage here, and it is difficult to see any government blocking the process. Also, there is a growing interest in Corporate Social Responsibility.  There are lots of corporations willing to go more than halfway. But they also have responsibility to their own stakeholders, and it would be unfair to expect this to be an act of charity on their part. Our task is finding the middle ground, leveraging moral grounds while defining an effective legal framework so corporations can go back to their stakeholders and justify their support of those solutions.

A.L.: You pushed hard for those issues when you were ambassador of India to the UN, as India has already taken steps in that direction and is ahead of other countries, notably on the topic of talking books.

A.S.: It is an issue that I feel a strong commitment to, and I think it is doable within a reasonable time frame, provided we can manage this parallel processes, and that the technical discussions will feed into a consensus.

You are right regarding India. As a member of WIPO, we felt that the issue demanded attention. India has legislation, the Copyright Act, which provides exemptions and limitations and is currently under review. In the next few months, we should see new dispositions towards improving the text. It is rather generic and needs some refining specifically addressing the needs of blind persons in view of the evolution of technology.

Dipendra Manocha has put together a voluntary stakeholder platform within India with publishers. Also, a pilot will be put in place with the Daisy Federation and the National Institute for the Visually Handicapped, a government body, under the trusted intermediaries program. That model could then be extended to other developing nations, as our concerns are similar. We have to get over the inhibition that technology is not available for developing nations.

A.L.: Technology, on the contrary, can help developing nations leapfrog with new more effective solutions!

A.S.: That’s right, and this is where we will need the technical help of G3ict.  We need advice on seeking what technology would be relevant in specific situations. We see great potential here.  Books over cell phones, material in the public domain… We need to think about a phased approach to promote new solutions step by step.