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SCCRJ22/16 PROY,ORIGINAL: ENGLISH

D A n : .JUNE 23 , 2011

Standing Commit tee on Copyright and Related Rights

Twenty-Second SessionGeneva, June 15 to 24, 2011

Proposal on an international instrument on limitations and exceptions for personswith pnnt disabilities

document prepared by the Chair

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PREAMBLE

Recalling the principles of nondiscriminalion, equal opportunity and access, proclaimed in theUnited Naitons Convention on the Rights of Persons with DIsabIlities,

Mindful of the challenges that are prejudicial 10 human development and the fulfillment of visuallyimpaired persons and persons with print disabIlities with regard to education, research, access toinformalion and communieation,

EmphasIzing the importance of copyright protection as an Incentive for literary and artisllccreation and enhancing opportunities for everyone to participate in the cultural life of thecommunity, to enjoy the arts and to share in scientific advancement and Its benefits,

Recognizing the importance of both accessibility to the achievement of equal opportunities in allspheres of society and of the protection of the nghts of authors In their literary and artishc worksin a manner as effective and uniform as possible,

Aware of the many barriers to access 10 informahon and communicahon experienced by visuallyImpaired persons, persons with print or other disabilities regarding access to published works,

Aware that the majority of visually impaired persons and persons with print disabilities live incountries of low or moderate incomes,

Deslnng 10 provide full and equal access to information, culture and communication for thevisually impaired persons and persons with print disabililtes and, towards that end, consideringthe need both to expand the number of works in accessible formals and to improve access tothose works,

RecogniZing the opportunities and challenges for visually impaired persons and persons withprint disabilities presenied by the development of new information and communicationtechnologies, including technological publishing and communication platforms thaI aretransnational in nature,

Recognizing the need to seek, receive and impart mformation and ideas through any media andregardless of fronhers,

Aware that nalional copyright legislation is terrilorial In nature, and where activity is undertakenacross jurisdictions, uncertamty regarding the legality of aclivity undermines the developmenl anduse of new technologies and services thaI can potentially improve the lives of visually impaIredand persons with print disabilities,

Recognizmg the large number of Members who, to that end, have established exceptions andlimitations in their national copyright laws for visually impaired persons and persons with printdisabilities, yetlhe continuing shortage of works in special formals for such persons,

Recognizing ~ h a lthe preference is for works to be made accessible by nghtholders to people withdisabilities at publication and that, to the extent that the market is unable to provide appropnateaccess to works for visually Impaired persdnS and persons with print disabilities, it is recognizedthat alternative measures are needed to Improve such access,

Recognizing the need 10 maintam a balance between the righls of authors and the larger publicInterest, particularly education, research and access to information, and that such a balance mustfacilitate effective and llmely access 10 works for the benefit of Visually fmpaired persons andpersons print disabilities,

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EmphasiziIlg the importance and flexibility of the three-step test fo r limitations and exceptionsestablished m ArtICle 9(2) of the Berne ConventIOn and other mternational instruments.

Considenng the discussions WJthm the WIPO Standing Committee on Copyright and RelatedRights on the ISSUe of exceplJOns and limItatIOns for the benefit of Visually Impaired persons and

personsWIth

print dlsabihtles and the various proposals tabled by Member States.

Prompted by the need to conmbute to the ImplementatK>n of th e relevant recommendations of theDeve}opment Agenda of the Worid Intellectual Property Organizabon.

Taking into account the importance of an internatlonallegallnstrumentfjO,nlrecommendatlon/treaty both 10 Increase lh e number and range of accessible format worksavailable to visually impaIred persons and persons With print disabil it ies In the world and 10

provide the necessary minimum flexlbilities In copyright laws that are needed to ensure full andequal access to information an d communicallon for persons w ho a re VIsually Impaired or have apnnl disability In order to support their full and effectIve participation in society on an equal basisWith others and 10 ensure the opportunity to devek>p and ut il ize theI r crealJve, a rt is tic and .

Intellectual potential, for their own benefit and for the enrichment of sooety.

Have agreed as follows

{Itis proposed to delete the fiffeenth paragraph that reads-considenng the discussions WIthin the WIPQ Standing Commfftee on Copyright an d RelatedRights on th e issue of exceptions and limItations for the bener" of visually Impaired persons andpersons WIth pnnt disabiltlJes an d the vanous proposalS tabled by Member States, ..

{ft is proposed to ad d a new paragraph that reads'-Desiring to hannonize an d enhance natlOtlallaws on such limitations an d exceptions through anmtemational framewm* conSIstent With the Beme Convention In order to faclfitate access toknowledge m copyrighted works by persons WIth disabilities, 7

ARTICLE ADEFINITIONS

For purposes of these proviSionS

"woOt"

means a protected work within the meaning of the Berne Convention, whether published orotherwJSe made publicty available in an y media

"accessible format copy"means a copy of a work In an altemative manner or form which gives a beneficl8ry personaccess to the woo, ,"eluding to pennit the person to have access as feasIbly and comfortably asa person Without a pnnt disability The accesSIble formal copy must respect the IOtegnty of theoriginal work afJ be used exdusively by visually Impaired persons and persons With pnntdisabilities.

[Possible enumeration of different formats I

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means a governmental agency. a non-profit entity or non-profit orgamzatlon that has as one of itsprimary miSSions to assIst persons with print dIsabIlities by providIng them with services relatingto educaoon, training, adaptIVe reading, or information access

An authonzed entity maintainS procedures and poliaes or rules to establish the bona fide natureof persons wrth print disabllittes that they serve

An authonzed enhty has th e trust of both persons Wl'lh print disabilities and copynght nghtsholders It is understOOd that to obtain the trust of rightholders and beneficiary persons, It is notnecessary to require the prior permission of said rightholders or beneficiary persons'

If an authorized enhty is a nation-WIde network of orgamzatlons, then all organizahons.InslltulJons, and enlJtles that parbClpate In the networlt must adhere to these charactenslJcs

~ r e a s o n a b l epnce for devetoped countnes"means thai the a c c e s s i ~ eformat copy of the wOf1( IS availatHe at a SImilar or lower pnce than theprice of the work available to persons WIthout pnnt dlsabilihes In thai marl

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ARTICLEB

BENEFICIARY PERSONS

A benenciary person IS a person who

(a) is bhnd:(b) has a vlSUallmpatrmenl Of a perceptual O f reading disability or any other print disability,

wtitCh cannot be improved by the use of corrective lenses to give VIsual funchonsubstantially eqUivalent to that of a person who has no such ImpaIrment or disabIlity and soIS unable 10 read printed works to substantial ly the same degree as a person without anImpairment or dIsability; or

(c) .5 unable, through physICal disabIlity, to hold or manipulate a book or to focus or move theeyes to the extent that would be normally acceptable for reading

(It is proposed to me/ude a new Arode that reads as f o l l o w s ~ARTICLE X

NATURE AND SCOPE OF OSUGA TlONS

1 Member StaleslContradmg parlJes should/shall adopt appropriate measures to implementthe proViSlOflS of thIS mtemalJonaf lega/,nstrumentl"JOInt recommendationltreaty.

2. Member StaleslConlraCting Parlles should/shall apply the international/egalinstrument/jOmt recommendationhreaty transparently, taking into account the prioritieS an dspecIal needs of developing countries as well as the different levels of development of theMember StatesIContracting Parties

3 Member StatesIContradmg parties should/shall ensure the Implementation 01 thiSmtemationallegal i!"strumentljoint recommendatlon!treatyaRows fo r tm16ly and effectiveexercise of actions covered, including eXpeditIOus procedures that are fair an d equrtable.j

ARTICLE CNATIONAL LAW EXCEPTIONS ON ACCESSIBLE FORMAT COPIES

1 Member StateiContractl l19 Party should/shall provide in their national copynght law for anexcepbon or limitation to the nght of reproductJon, lhe right of distributIOn and the nght ofmalong a v a i l a ~to the putHic, as defined In article 8 of the WeT, for beneficiary personsas defined herem

2 A Member State/Contracting Party may fulfill Af1lde C (1) by providing an exception orlimitation in its national copyright law such that

(A) Authonzed enti tl es shall be permitted Without the authonzation of the nghthokter tomake an accessible format copy of a worit, supply that acceSSible format copy or anac.essibfe format copy obtained from another authorized entIty 10 a benefICIaryperson b y a ny means, induding by non-commerciallending or by electroniCcommunication by WIre or wireless means, and undertake any Intermediate steps toachieve these objectives, when aU of the following conditions ar e met.

, . the authorized entity Wishing 10 undertake said aetMty has lawful access tothat work or a copy of that work.

2 the work is converted to an accesSible fonnat copy, whICh may include anymeans needed 10 navigate information in the accesSible format. but does not

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Introduce changes other than those needed to make the work accessible tothe beneficiary person;

3. copies of the work in the accessible formal are supplied exclusively to be usedby benefICiary persons; and

4. lhe acllVlty is undertaken on a nonprortt basis. 2

(B) A beneficiary person or someone acting on his or he r behalf may make anacceSSIble fonnat copy of a work for the personal use of the beneficiary personwhere the beneficiary person has lawful access to that worl

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Individual IS property entitled 10 receive such accessibfe format c o p ~under thatother Member State/Contractlng Party ' s nahonallaw

The Member State/Contracting Party may limit said distribution or making available topubilShed works whICh. in th e applICable accessibl e fOfTllat. cannot be otherwise obtained

Wlthm a reasonable tlme and at a reasonatHe price. in the country of Importation

3 A Member StateJContractJng Party may fulfill Article D(1) by providing any other exceptionor limitation In its nallonal copyrighllaw that is limited to certain speaal cases whldl do notconflICt with a normal exploitation of the work and do nOI unreasonably prejudICe thelegitimate mterests of the nght holder

[fn paragraph 1, it ;s proposed to repface the word -law by 'egislation 7

ARTICLE EIMPORTATION OF ACCESSIBLE FORMAT COPIES

To the extent that national la w would permit a beneficsary person or an authonzed entity acting onthe benefICiary person's behalf t o mak e a n accessible format copy of a work, the nat ional lawshould/shall permit a beneficiary pernon or an authorized entlty adJng on that person's behalf toImport an accesstbie format copy_

[It is proposed to add the following wording at the en d of this A r t i c J e ~-, Without the authorizatlOfl of the copyright hoIder7

ARTICLE FTECHNOLOGICAL PROTECTION MEASURES

Member StateslContraclJOg Parties should/shall ensure that beneficlanes of the exceptionprovided by Article C have the means to enjoy Ihe exception where technological prolectionmeasures have been applied 10 a work.

In the absence of voluntary measures by rightholders and 10 the extent that copies of the work inthe accessible format are not avaIlable commercially at a reasonable price or via authorizedentities. Member SlatesJContractlflg Parties shouldlshall take appropnale measures to ensurethat beneficianes of the excepllon provided by Artide C have !h e means of benefiting from thatexceptJon when techmcal protection measures have been applied to a work. to lhe extentnecessary 10 benefit from that exception

[It is proposed to change the WOrding of thiS AtticJe as loIlows'"AROCLEF

CIRCUMVENTION OF TECHNOLOGICAL MEASURES

Member StatesfContracttng Parties shalVshould ensure that beneflC/anes o( the exceptionprovided by Artk;Ie D have the means to enjOy the exceptlOfJ where technological protectionmeasures have been applied to a work, mcludmg when necessary the nght to circumvent thetechnological protection measures so as to render the work accessible.

The nght to circumvenl technological protectIOn measures shall be applied ;n such a manner 8Sto provide safeguard against its abuse .

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ARTICLE GRELATIONSHIP WITH CONTRACTS

Nothing heretn shall prevent Member States/Contracting Parties from addressing lhe relabonshlpof contract law and statutory exceptions and timltatlons for benenciary persons

(It proposed to include the following wordmg at the begfnnmg of this ArtIcleWIthoUt affecting the PfO'I'Isions of this tnstroment. 7

(It IS proposed to delere this Mide)

ARTICLE HRESPECT FOR PRIVACY

In the implementation of these exceptions and hmltahons. Member States/Contracting Paruesshouk1lshall endeavour to protect the privacy of benefICiary persons on an equal basis with

othe