The expectation is that the treaty would be consistent with, and indeed advance, the fundamental intellectual property treaties - such as Berne, Rome, and Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS) - and human rights agreements such as the UN Convention on the Rights of Persons with Disabilities.
The treaty aims -
to provide the necessary minimum flexibilities in copyright laws that are needed to ensure full and equal access to information and communication for persons who are visually impaired or otherwise disabled in terms of reading copyrighted works, focusing in particular on measures that are needed to publish and distribute works in formats that are accessible for persons who are blind, have low vision, or have other disabilities in reading text, in order to support their full and effective participation in society on an equal basis with others, and to ensure the opportunity to develop and utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of society.The draft of the treaty, which has received broad support from Australia, indicates that -
Contracting Parties [ie nations] agree to undertake certain measures to enable full and equal access to information and communication for persons who are visually impaired or have other disabilities in accessing copyrighted works; ...Key elements of the proposed treaty include -
(c) Contracting Parties shall be free to determine the appropriate method of implementing the provisions of this Treaty within their own legal system and practice. (Language similar to TRIPS Article 1);
(d) Contracting Parties may, but shall not be obliged to, implement in their law more extensive protections for the visually impaired and reading disabled than are required by this Treaty, provided that such measures do no not contravene the provisions of this Treaty.
4.(a) It shall be permitted without the authorisation of the owner of copyright to make an accessible format of a work, supply that accessible format, or copies of that format, to a visually impaired person by any means, including by non-commercial lending or by electronic communication by wire or wireless means, and undertake any intermediate steps to achieve these objectives, when all of the following conditions are met:Consistent with provisions in Australian copyright law, Article 6 of the proposal ('Circumvention of Technological Measures') provides that signatories1. the person or organisation wishing to undertake any activity under this provision has lawful access to that work or a copy of that work;(b) A visually impaired person to whom a work is communicated by wire or wireless means as a result of activity under paragraph (a) shall be permitted without the authorisation of the owner of copyright to copy the work exclusively for his or her own personal use. This provision is without prejudice to any other limitations and exceptions that a person is able to enjoy.
2. the work is converted to an accessible format, which may include any means needed to navigate information in the accessible format, but does not introduce changes other than those needed to make the work accessible to a visually impaired person;
3. copies of the work are supplied exclusively to be used by visually impaired persons; and
4. the activity is undertaken on a non-profit basis.
(c) The rights under paragraph (a) shall also be available to for profit-entities and shall be extended to permit commercial rental of copies in an accessible format, if any of the following conditions are met:1. the activity is undertaken on a for-profit basis, but only to the extent that those uses fall within the normal exceptions and limitations to exclusive rights that are permitted without remuneration to the owners of copyright;(d) In determining if a work is reasonably available in (c)(3), the following shall be considered:
2. the activity is undertaken by a for-profit entity on a non-profit basis, only to extend access to works to the visually impaired on an equal basis with others; or
3. the work or copy of the work that is to be made into an accessible format is not reasonably available in an identical or largely equivalent format enabling access for the visually impaired, and the entity providing this accessible format gives notice to the owner of copyright of such use and adequate remuneration to copyright owners is available.1. for developed economies, the work must be accessible and available at a similar or lower price than the price of the work available to persons who are not visually impaired; and
2. for developing countries, the work must be accessible and available at prices that are affordable, taking into account disparities of incomes for persons who are visually impaired.
shall ensure that beneficiaries of the exception provided by Article 4 have the means to enjoy the exception where technological protection measures have been applied to a work, including when necessary the right to circumvent the technological protection measure so as to render the work accessible.Article 7 similarly provides that "Any contractual provisions contrary to the exception provided in Article 4 shall be null and void".
Patry tartly - and in my view perceptively - comments that -
A number of developing countries' positions were disappointing in their lack of meaningful support of the proposed treaty. Certainly if those making statements in actual opposition had available to them the minuscule amount the visually impaired have, their views would be quite different. Theirs is a failure both of compassion and a failure to recognize the positive role of copyright in furthering access. Some apparently are willing to sacrifice the neediest in order to hold on to more than they already deserve. It is easy to find reasons not to do something; the mark of a generous and compassionate soul is finding reasons to do something.
