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An Insider’s View of the WIPO: Interview with Janice T. Pilch, UIUC

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An Insider’s View of the WIPO: Interview with Janice T. Pilch, Associate Professor of Library Administration and Humanities Librarian at the University of Illinois at Urbana-Champaign

An international copyright advocate for the Library Copyright Alliance, which consists of the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries, Janice has represented the interests of U.S. libraries and the public at copyright-related meetings of the World Intellectual Property Organization (WIPO) and other international fora for the past three years. As an advocate, she develops position statements to advance fair and equitable access to information, contributing to LCA’s strategic effort to influence legislation and public policy governing use of copyrighted materials.

In 2009-2010 Janice also served as Visiting Program Officer on International Copyright for the Association of Research Libraries, responsible for research and policy formulation on international copyright issues relating to libraries.

At the ALA Annual Conference in June 2010 in Washington, Janice was a member of a panel co-sponsored by ACRL and the ALA Office for Information Technology Policy on “Why WIPO? Why International Copyright Matters.” We thought we would invite her to share some of her insights on the important work being done by the Library Copyright Alliance at WIPO in the global IP debate.

Mary Minow:
How did you find yourself before WIPO in June, representing library, and by extension, the public’s interests?

Janice Pilch: When the Library Copyright Alliance launched its international copyright advocacy program in October 2007, it gained accreditation as an NGO with observer status at WIPO. We set out to cover the work of three key WIPO committees: the Standing Committee on Copyright and Related Rights (SCCR), the Committee on Development and Intellectual Property (CDIP), and the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), as well as the WIPO General Assembly.

These committees are dealing with international treaty proposals and initiatives that impact the way that libraries and the public use copyrighted works and the future of information access. It’s critical for library organizations to be at the table for the discussions. In the most general terms, it’s about restoring the balance between private and public interests in copyright. I should mention that the LCA international copyright advocacy program has been generously funded by a grant from the John D. and Catherine T. MacArthur Foundation.

I have attended meetings of the General Assembly, CDIP and SCCR. In December 2009 and June 2010 I was the LCA representative to the SCCR, which is now is engaged in historic discussions on copyright limitations and exceptions in three areas: for blind, visually impaired, and reading disabled persons, for libraries and archives, and for education.

Mary Minow: Why is international copyright important for libraries?

Janice Pilch: There are several levels at which law is shaped — directly through the national legislation, and indirectly through international treaties and other international instruments that influence the national law. In some parts of the world, regional agreements also play an important role. In the U.S. we can influence lawmaking nationally, by reaching out to Congress — this is something that ALA does very well — and internationally, by sending representatives to WIPO to work from the top down, to shape the treaties and other instruments that condition the national law.

Because libraries preserve and provide access to the world’s intellectual heritage, they have an interest in promoting copyright laws that provide the broadest possible use of information for creativity, research and education. Library activity is made possible by limitations and exceptions to the exclusive rights of copyright holders. But there are no limitations or exceptions in the international instruments underlying the responsible work that libraries and archives do to keep information alive and circulating. Copyright limitations and exceptions for libraries exist as a matter of common practice in national laws, but they are not mandated by treaties. They are being compromised in the digital environment. They can disappear. Copyright limitations and exceptions are one of the most important issues currently on the agenda of the SCCR.

Engagement in international copyright issues is especially important for libraries in developing nations, that experience the uneven effects of globalization, compounded by external pressure to adopt high standards of protection that do not benefit them domestically. We support the goals of the WIPO Development Agenda that was adopted at the 2007 WIPO General Assembly to change this. It aims to bridge the “digital divide” — the technology gap and the knowledge gap that has come about as a result of globalization, technological change, and trends toward higher protection of intellectual property associated with the WTO TRIPS Agreement. The work that LCA does at the CDIP is about improving access to knowledge for developing and least developed nations.

And in the IGC, WIPO is currently considering adoption of a treaty to protect traditional cultural expressions (TCEs), works of indigenous peoples and traditional communities. This would have far-reaching implications for indigenous peoples and other communities that are tradition bearers of these expressions. It would also affect libraries and museums holding collections that include TCEs — texts, audiovisual works, sound recordings, art, photographs, artifacts, and more, and also derivative works, such as collections of native folk tales and archives of anthropological research related to native history and culture. Because libraries and museums play a primary role in preserving cultural heritage, this is a key issue for us.

Mary Minow: Can you describe the atmosphere at the WIPO proceedings?

Janice Pilch: WIPO is a specialized agency of the U.N. Discussion is formal, governed by U.N. protocols. Government delegations raise their flags and speak in queue. The meetings are held in a large assembly room, consisting of delegations of WIPO Member States — 184 nations belong to WIPO — plus plus accredited IGO and NGO representatives. They are typically week-long meetings. Meetings go all day long, sometimes into the night.

Government delegations consist of a combination one or more heads of copyright, patent, or trademark offices, representatives from U.N. missions, government ambassadors, diplomats, or other senior government officials. Although it varies from meeting to meeting, usually there are several hundred government delegates present, plus the IGOs and NGOs.

The atmosphere is refined and polite, but discussions can be polarized, often with highly industrialized nations and developing nations presenting opposing interests. Regional groups play an important role. As in other U.N. bodies, regional groups wield power collectively. Examples of regional groups are the Group of Latin American and Caribbean Countries, the African Group, and the Asian Group. Group B is a cluster of industrialized countries. Agreement between several regional groups is the way to get things done.

Mary Minow: What do you do as an NGO representative at WIPO?

Janice Pilch: We do a lot at the meetings, and put a lot into the preparation for meetings. As an observer organization, we prepare written statements and give statements, called interventions, on the floor. NGOs are given time usually at the end of a topic discussion, or at the beginning of a meeting, or end of a week-long meeting — usually 3 minutes — to take the microphone and deliver an intervention. We have to anticipate the flow of a discussion and also be ready to give statements on the fly if there is not a lot of advance notice.

We also prepare written documents for distribution to WIPO delegates, to clarify and reinforce library concerns. Our aim in doing this is to offer to government delegations information about libraries and archives, as well as our concerns, so that they will make better decisions. Copyright law is not absolute — it is constantly changing, and it’s created by human beings. Who can better explain the practicalities of copyright law for libraries than librarians?

An example of such a written document is the Statement of Principles on Copyright Exceptions and Limitations for Libraries and Archives that LCA, along with eIFL.net and IFLA, wrote and distributed at the WIPO SCCR meeting in May 2009. The Statement outlines the urgency of taking action to expand limitations and exceptions to meet the needs of librarians and the public in the digital environment. It followed the WIPO Study on Copyright Limitations and Exceptions for Libraries and Archives prepared by Kenneth Crews, whom we all know as a leader in the area of libraries and copyright.

In addition, we work on new ideas related to committee meeting agendas that will benefit libraries. Sometimes the work results in new proposals officially put forward by government delegations, or studies, or information incorporated into studies. For example, in the CDIP there is a project involving the digital divide and access to knowledge that will include analysis on education and research, open access, and e-information services. Contributing feedback to projects like this enriches the discussion. The more information there is on the table, the greater the likelihood that the outcome will be reasonable and will consider the interests of all stakeholders.

In Geneva we also attend and speak at side meetings organized by official delegations, IGOs and NGOs, at lunchtime sessions or in the evening. They are sometimes on a specific issue, such as a new breaking development, and sometimes they are general meetings. During the breaks and other available free time, we engage with delegates, to make our concerns known, and to be supportive to them as well. We sometimes meet with the U.S delegation and we appreciate those meetings very much.

The work is collaborative. We work with other civil society organizations, especially other library organizations. Civil society organizations support each other, and do enormous amount of work. Increasingly committee chairs and delegations acknowledge the beneficial influence of NGOs, including library organizations, and this is gratifying for us. Our presence alone is important.

Mary Minow: You’ve been to WIPO sessions before. Have you noticed any changes over the years?

Janice Pilch: I have noticed changes in the three years that I have attended, since 2007 — all positive. Colleagues who have been involved in this work for much longer also note that the influence of NGOs has increased over the years, and that there is more acknowledgment of their participation. When library organizations started attending WIPO meetings, the organization was less receptive to our views. Now there is more cooperation. WIPO welcomes civil society participation but at the same time the main focus of WIPO is the promotion of IP protection worldwide, and that is the context we work in.

Many WIPO delegates express gratitude for our presence and support us, in their interventions. We feel that there is a cumulative effort in the work we do. On the issue of copyright limitations and exceptions for blind, visually impaired and other reading disabled persons, over time we have seen a move from resistance to the issue, to tenuous acceptance, to full agreement that this is an issue that demands a solution at WIPO.

Mary Minow: Can you describe some of the surprising twists and turns on the copyright front for blind and reading disabled persons?

Janice Pilch: This is such an important issue, and it has a long history. For decades, blind and visually disabled persons have been struggling for improved access to copyrighted works. In most countries it is difficult legally to copy and transform a copyrighted work into an accessible format, even as digital technology has made this easier. There is no international copyright treaty that contains a specific provision relating to the needs of blind and visually impaired people. The result is that provisions in national laws vary greatly from
country to country. And there is no international framework that facilitates cross-border distribution of accessible versions.

The need for a solution has been under discussion since the early 1980s. A 1985 report issued by the Executive Committee for the Berne Convention and the Intergovernmental Committee of the Universal Copyright Convention recommended a solution in the form of a new treaty. But nothing happened. Even now it is estimated that in the U.S., less than 5% of published works are available in accessible formats. The problem is more acute in developing nations. This is an appalling figure.

To get the issue on the WIPO agenda, in 2004-2005 the government of Chile made several proposals to WIPO to address exceptions and limitations for education, libraries, and disabled persons, and the public interest. Library groups were fully behind these proposals.

WIPO responded positively to the 2005 proposal by Chile, and commissioned a series of new studies on limitations and exceptions in the digital environment covering three areas: for the visually impaired, for libraries and archives; and on educational activities and distance education, including cross-border issues. The WIPO Study on Copyright Limitations and Exceptions for the Visually Impaired by Judith Sullivan in 2007 identified only 57 nations that have a provision for visually impaired people in the national copyright law.

In July 2008 Brazil, Chile, Nicaragua and Uruguay presented a new proposal. There was discussion but no real action. Remarkably, the idea came under a lot of criticism when it was discussed at a November 2008 SCCR information session.

But one group was ready to take the process a step further to make something happen — the blind and reading disabled community. The World Blind Union made something happen. In October 2008 the WBU submitted to WIPO their proposal for a Treaty for Improved Access for Blind, Visually Impaired and Other Reading Disabled Persons. It was formally introduced at the May 2009 SCCR meeting by Brazil, Ecuador and Paraguay. It is now also supported by Mexico.

The proposal was introduced at about the same time that there was public reaction in the U.S. over Amazon’s Kindle 2 E-book reader. In April 2009 hundreds of people organized by the Reading Rights Coalition gathered in front of the headquarters of the Authors Guild in New York to protest the removal of the text-to-speech capabilities in Amazon’s new Kindle 2 E-book device. The Authors Guild had pressured Amazon to disable the synthetic speech function of Kindle 2, which it stated was a violation of copyright law.

Back to Geneva. The text step for WIPO was to discuss the treaty proposal. It was on the agenda for discussion at the SCCR meeting in December 2009, and was the most anticipated agenda item of the meeting. Seventeen NGOs representing blind and reading disabled persons had applied for special ad hoc accreditation to attend the meeting in
support of the proposal.

What happened at this meeting was that after a series of interventions by government delegations, the U.S. delegation delivered an extraordinary statement. It expressed a firm commitment to reaching international consensus on copyright exceptions for persons with print disabilities, especially on cross-border distribution. It was a powerful statement and a dramatic moment that changed the tenor of the WIPO discussion. It was the major event at this meeting, it was exhilarating.

But I suppose it was too much to hope that a solution would be reached quickly. Since that meeting, three new proposals on limitations and exceptions for the reading disabled have been submitted — by the U.S., E.U., and the African Group. There are now four, and they are all very different, they all have a different focus. What this means is that the discussion has shifted to the issue of how to proceed on the issue.

During the SCCR meeting in June 2010, most delegations expressed appreciation for all the proposals, agreeing that the needs of the blind and visually disabled require a timely solution. But when it came time to draft conclusions of the meeting on the final day, disagreements surfaced. The delegations could not agree on how to proceed, and this issue was left without a written conclusion.

So we are back to a situation of uncertainty over what will happen. The issue has momentum and there is universal agreement that something needs to happen to improve accessibility for blind and reading disabled persons. It’s just not clear how quickly WIPO will come to a solution. The discussion will continue at the SCCR meeting in November. Needless to say, after the promising developments at the December 2009 meeting, the June 2010 meeting felt like a setback to many who attended.

Mary Minow: What are some of the frustrations you find in negotiations that have nothing to do with the merits of the discussion?

Janice Pilch: The slowness of the process can be frustrating. Because there are so many delegations weighing in on the deliberations, it can take days to complete discussion of one topic. The issues are complex and views often do not line up in ways that lead to clear solutions. I admire the ability of the committee chairs to work through discussions that can become quite entangled.

WIPO is consensus-based organization, and decisions can be reached only if there is full agreement. This has both good and bad consequences. When delegations agree on issues, the discussions are fruitful. But when political tensions arise, you see tactics used to stall or block the process, that can affect progress for years on end.

Mary Minow: Anything hopeful?

Janice Pilch: Yes, I think it’s all hopeful. Things might not change quickly, but the issues are moving in hopeful directions. The Development Agenda is progressing. New issues of open access, open licensing, and flexibilities in national law are being discussed in connection with projects designed to implement the Development Agenda. The SCCR has the issue of copyright limitations and exceptions on its agenda, and this offers us a chance to influence the way that libraries and archives use copyrighted works into the future, and it also offers a window of opportunity to improve copyright exceptions for education globally. The issue of copyright limitations and exceptions for the blind and reading disabled is receiving the most attention right now, and there is a sincere desire to reach a solution. The U.S. delegation is making great efforts to reach consensus on a solution to benefit blind and reading disabled persons.

In the matter of protection of traditional cultural expression, it’s hard to predict what the final result will be, or whether WIPO will be able to find an effective solution based on western legal norms.It is significant that indigenous representatives continue to be astrong force at WIPO, advocating for solutions that reflect their world views and their authority. This in itself is a positive influence, that goes beyond discussions of copyright law to issues of cultural sensitivity, respect, and recognition that belong in all national and international discussions. This is an important part of the process.