WIPO Conference on Meeting the Needs of Visually Impaired Persons: What Challenges for IP?
Notes for a Panel presentation - July 13, 2009
Presentation by Mr. Douglas George
Thank you for giving Canada this opportunity to address this important issue.
Canada has been invited to present the viewpoint of an industrialized country. While I expect many other WIPO members, both industrialized and developing, share the same views, today I am speaking only on behalf of Canada
Today my talk will cover:
- a quick explanation of Canada's domestic regime
- an examination of the international context
- observations on what principles should we apply as we move forward
- and some views on stakeholder consultations
Domestic Canadian Policies and Law
Canadian domestic policy has already recognized that steps can be taken through IP law to enhance accessibility to copyright materials for persons with a perceptual disability.
Canadian law has specific provisions allowing the creation of material in accessible formats, such as Braille or audiobooks.
The specific exception allowing the adaptation of materials into accessible formats, such as Braille and audiobooks, was added to the Canadian Copyright Act in 1997.
It can be found in section 32 of the Act, which allows the creation of adapted materials for those with "perceptual disabilities".
The Canadian Act defines "perceptual disability" as follows:
"perceptual disability" means a disability that prevents or inhibits a person from reading or hearing a literary, musical, dramatic or artistic work in its original format, and includes such a disability resulting from
(a) severe or total impairment of sight or hearing or the inability to focus or move one's eyes,
(b) the inability to hold or manipulate a book, or
(c) an impairment relating to comprehension;
In the context of WIPO discussions, the comparable term is "reading disability" or "reading impairment".
Section 32 is an exception as opposed to a compulsory licence or other form of limitation. No payment is required to the rights owner, and the exception is available only if a work in a form adapted to the needs of the perceptually disabled is not otherwise commercially available in Canada.
Section 32 allows the copy to be made by a person at the request of a person with a perceptual disability or by a non-profit organization acting for the benefit of people with perceptual disabilities.
The International Context
Next, I will address some relevant considerations in the international context.
First, I would like to stress that with respect to the creation of copies in an accessible format for domestic purposes, there is already considerable flexibility and certainty in international law.
There are already many examples in the domestic legislation of various countries which could be copied or updated for countries which currently do not have such provisions. There is no need to wait for an international agreement or a new set of principles before acting.
The one area where there is significant uncertainty relates to the international exchange of accessible material created under a limitation or exception.
It is with respect to the import and export of adapted materials that an international instrument, whether binding or non-binding, can give the greatest value-added.
POSSIBLE WIPO INSTRUMENT
At the recent meeting of the WIPO Standing Committee on Copyright and Related Rights Canada made some preliminary remarks on how best to proceed.
There are many possible mechanisms that we could consider for an international instrument, and there are advantages and disadvantages to each.
Canada is willing to engage and is open to consideration of the best approach. We hope that others will also approach the debate with open minds and a flexible attitude.
I wish to underscore a few concepts and principles that Canada considers should be borne in mind as we work together on this issue:
- general principles that should feature in any eventual solution. The principles expressed were intended to apply regardless of the type of instrument (i.e. binding or non binding) which might be adopted;
- any instrument should allow a variety of mechanisms for the production of accessible copies for domestic purposes, e.g. an exception, a compulsory licence or a conditional exception;
- countries should be allowed to have different types of limitations or exceptions with respect to different types of adapted materials;
(Note: for example, a country might have an exception to produce Braille material but a compulsory licence to produce audiobooks)
- it is not necessary to have a uniform rule in all countries to allow the international exchange of adapted materials;
- it would be necessary to discuss the norms which would apply to the exchange of materials among countries which have different limitations or exceptions for the production of adapted material;
(Note: for example the export of an adapted copy made under an exception to a country which used a compulsory licence)
- any instrument should facilitate the international exchange of adapted material; and
- Finally, it would be necessary to clarify how the three step test for limitations and exceptions applies to the import and export of material made under a limitation or exception.
The three step test requires that limitations and exceptions (1) be limited to certain special cases, (2) which do not conflict with a normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the rights holder.
Overall, Canada’s approach emphasizes flexibility with respect to national approaches and that a uniform rule is not necessary to allow the international exchange of adapted materials. We have already seen in initial discussions at SCCR the fact that different countries may have different approaches and that norm setting will need to reconcile this range of approaches.
Consultations and Future Work
While I concentrated on the possibility of an international instrument, we should not lose sight of the other aspects of this issue - the Stakeholders Platform has identified a number of different elements which go beyond IP issues. We look forward to their further work.
It is our intention to engage in further consultations with Canadian stakeholders on this issue prior to the next meeting of the Standing Committee on Copyright and Related Rights.
We also welcome any comments which foreign or international associations may wish to make on the approach which we have suggested.
We recognize there are complex issues that must be considered carefully.
We look forward to working with all members of the SCCR at the next meeting to make progress on this issue.
Thank-you for your attention today.