By Mary Anne Reid
Australian Copyright Council
The Director-General of the World Intellectual Property Organisation (WIPO) – Francis Gurry – will appear at two copyright conferences in Australia this year. Given the ambitious copyright reform agenda set by WIPO for 2011-12, these visits are likely to be just a fraction of the advocacy program that awaits Gurry over the next 18 months. In this month’s feature we look at the first item on WIPO’s exceptions and limitations agenda: increasing access to books for the vision impaired.
In November 2010, WIPO announced a two-year work program on copyright exceptions and limitations that, considering the pace at which international negotiations often move, represents a significant acceleration. The first of the three areas to be covered is access to books for the blind and vision impaired.
It is estimated that even in the wealthiest countries (including Australia), less than five per cent of published works are available in formats accessible to the vision impaired. According to WIPO: “The proliferation of digital technologies has added a new dimension to the question of how to maintain a balance between the protection available to right owners, and the needs of specific user groups, such as reading impaired persons. More than 160 million blind or visually impaired people around the world stand to benefit from a more flexible copyright regime adapted to the technological realities of the day.” 
Transforming works into accessible formats – whether hard-copy Braille, large print, sound recording or digital – is a form of reproduction, which requires permission, unless an exception to infringement applies. WIPO’s standing committee on copyright will have three extra days at its next regular session (May 2011) to consider options for increasing access, and will then make any recommendations to the WIPO General Assembly.
In the analogue world the common practice is for people with a print disability to access alternative formats through an appointed organisation or specialised library in their country. Access to material from other countries is by interlibrary loan and users of this service can wait months to receive their order. Then there is the problem of conversion itself. To date the number and range of books available has been hampered by the time-consuming and costly process of converting print into accessible formats (which is typically done by government-funded organisations assisting people with a disability).
As digital technologies transform the publishing business, from creation to distribution, new opportunities are arising for the vision impaired to benefit through lower-cost digital conversion and distribution. The ultimate goal, say representatives of the World Blind Union, is for the vision impaired to be able to access and purchase any book in an accessible format in the same way as other consumers (‘mainstreaming’). And while new technologies are making this ideal more achievable in large, developed national markets (with ageing populations) like the Unites States, it is still a long way off in poorer countries and even in smaller developed economies like Australia, which cannot yet support such a shift.
Consequently, many developing and developed nations are sympathetic to the need to take steps through WIPO. They want to use limitations and exceptions to lever up the volume of accessible books moving across national borders, hence reducing the need to duplicate the costs of conversion in individual countries. There are two parallel processes currently underway in WIPO with this objective:
- Negotiations on an international treaty or instrument obliging signatory nations to make their converted works available to the vision-impaired in other countries;
- An international exchange pilot program, called the Trusted Intermediary Global Accessible Resources project (TIGAR).
The Australian Government is on the record as supporting both approaches. Speaking at a WIPO session in November 2010, the Australian delegation stated that while Australia had addressed this issue domestically through a system of statutory licences, “obstacles remained for people in developing countries in accessing [copyright] materials, and Australia was strongly committed to developing practical solutions to these challenges.” 
There are very different ideas afoot about the form an international treaty or instrument should take and there is no guarantee that the national groupings backing the four different proposals under consideration at WIPO will be able to reach agreement when they meet in May.
So what are the obstacles? From the perspective of publishers and authors, the biggest threat is piracy, or ‘leakage’ into the wider community, of electronic files moving across national borders. Some of these electronic files, such as large format and audio, are very similar to standard publisher files and therefore accessible to the general public (unlike physical Braille copies). Each of the four proposals on the table demonstrates a different level of attention to this risk.
The proposals put forward by the US and the European Union both stipulate that accessible digital formats should only be imported and exported through what are known as ‘trusted intermediaries’. This term is defined differently by the parties but in essence refers to the governmental or non-profit organisations which control the creation of accessible formats – authorised under exceptions in national copyright law – and ensure they are distributed to bona fide persons with a print disability. But even though the EU and the US agree that trusted intermediaries are the way forward, their proposals differ significantly in other ways: the EU document contains a relatively long list of eligibility requirements and obligations for trusted intermediaries, while the US proposal has a much lighter touch.
It is the absence of any requirement for trusted intermediaries which is the key difference between these and the two other proposals being considered at WIPO – one from Brazil, Ecuador, Paraguay and Mexico, and one from the African Group. In addition, the African Group’s proposal moves in another direction from all the others by requiring that limitations and exceptions for the following be dealt with alongside those for the vision-impaired:
- Educational and research institutions
- Libraries and archives
- Private use and research
While all four proposals recognise the problem and seek a solution, the risk is that a failure to agree on a pathway will produce a stalemate at the special meeting of the WIPO standing committee in May.
Those opposed to an international treaty or instrument argue that international legislation is already sufficient to facilitate cross-border transfer and that the real problem is an administrative one. What is needed, they say, is a global database of works available and a secure system for transferring them. With this end in mind WIPO has set up the TIGAR pilot project to lay the practical foundations for the delivery of electronic files across borders via trusted intermediaries. The pilot project was devised by representatives of creators, publishers, reproduction rights organisations and the vision impaired sector, and is seen by many as the practical way forward. The TIGAR steering committee is currently working on the adoption of model file transfer and rights clearance agreements for use by a global network of trusted intermediaries. The process will take time and there are also likely to be debates about who should bear the costs.
An examination of why the percentage of books converted into accessible formats for the vision impaired is so low even in developed countries like Australia (where exceptions and limitations already apply) shows that the perennial issue of government funding is a factor. The cost of conversion to accessible formats is covered in Australia (as it is elsewhere) by government and the resources available fall below the demands of the sector. The Australian Government is therefore keen to see the cost-saving potential of digital technology turned into a tangible result for the vision impaired within our national borders as well as internationally.
Then there is the service sector which undertakes the conversion and distribution of accessible formats. The fragmented nature of the sector results in double-ups in conversions and other inefficiencies in the use of scarce resources. Furthermore, these organisations are not necessarily the best equipped to make the transition to cost-effective digital conversion.
The Australian publishing industry meets its current obligations under national copyright and anti-discrimination legislation through the statutory licence administered by Copyright Agency Limited (CAL), as well as through direct licensing of digital files by print disability organisations. Authors and publishers have traditionally been sympathetic to the needs of the sector and they generally receive no remuneration for the use of their works (the CAL board determined that the statutory licence fee should be zero-dollar rated as there is currently no commercial market for these formats).
In a recent submission to the Government , the Australian Publishers Association (APA) spoke of a future in Australia in which the existing methods of support through limitations and exceptions would be complemented by new commercial models: “New business models are already being developed, including commercial models, which have the potential to provide much greater access…The use of digital files in the publishing process has the potential to reduce or eliminate many historical burdens in the conversion process, but there remain issues to be resolved such as technical compatibility and standardisation, which will take time to resolve and are largely driven by the US market.”
The APA is also actively involved in non-commercial schemes to increase access, such as working with CAL and other stakeholders on developing a single, nationwide Australian repository: “The project if endorsed would establish a repository of alternative formats, possibly through the library system and the educational sector to students, which would be accessible to organisations assisting people with a print disability.” 
These initiatives, though, are aimed at domestic users and will do little to address the cross-border issue. Many publishers and creators view with alarm the prospect of sending their electronic files outside Australia unless there is some assurance that the files will be secure. Given that the Government has stated it wants action on this issue sooner rather than later, an international instrument relying on trusted intermediaries may prove to be an acceptable common ground from Australia’s perspective.
 WIPO, available at: http://wipo.int/pressroom/en/articles/2009/article_0021.html
 Draft Report of 21st meeting of the SCCR, December 20, 2010: http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=154497
 Australian Publishers Association, Submission to Attorney-General’s Department Stakeholder Consultation, November 2009, p.3.