The
Contracting Parties,
Recognizing
the importance of accessibility in the process of the equalization of opportunities in all spheres of society,
Aware of
the many barriers to access to information and communication experienced by persons who are blind or have limited vision, or have other disabilities regarding access to published works,
Aware
that 90 percent of visually impaired persons live in countries of low or moderate incomes,
Desiring to
provide full and equal access to information and communication for the visually impaired,
Recognizing
the opportunities and challenges for the visually impaired presented by the development of new information and communication technologies, including technological publishing and communication platforms that are transnational in nature,
Recognizing
that similar opportunities and challenges are faced by people with some other disabilities,
Recognizing
the need to seek, receive and impart information and ideas through any media and regardless of frontiers,
Aware that national copyright legislation is territorial in nature, and where activity is undertaken across jurisdictions, uncertainty regarding the legality of activity undermines the development and use of new technologies and services that can potentially improve the lives of the visually impaired,
Recognizing
the need to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the challenges and opportunities presented by economic, social, cultural and technological developments,
Emphasizing
the importance of copyright protection as an incentive for literary and artistic creation, and as a means to ensure that everyone has the opportunity to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its
2
benefits,
Recognizing
that the ideal is for publishers to make their works accessible to people with disabilities at publication and that alternatives are needed to address instances when this does not happen,
Recognizing
the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention,
Have agreed as follows:
(a) Contracting Parties 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.
(b) Contracting Parties shall give effect to the provisions of this Treaty.
(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. (Language similar to TRIPS Article 1)
(e) Implementation of the Treaty shall be development-oriented and transparent, taking into account the priorities and the special needs of developing countries, as well as the different levels of development of Contracting Parties. (WIPO Development Agenda)
(f) Contracting Parties shall ensure that the implementation allows for timely and effective exercise of authorized actions covered by this Treaty, including expeditious procedures that do not in themselves create of barriers to legitimate uses, are fair and
equitable,and
are not unnecessarily complicated or costly, or entail unreasonable time, time-limits or unwarranted delays. (Language similar to TRIPS Article 41)
(a) Contracting Parties agree that the provisions of this Treaty are consistent with obligations set out under those of the following treaties and conventions to which they are a party:
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1. the Paris Act of July 24, 1971 of the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention),
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2. the WIPO Copyright Treaty 1996 (the WCT),
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3. the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations
done in Rome, October 26, 1961 (the Rome Convention),
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4. the WIPO Performances and Phonograms Treaty 1996 (the WPPT),
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5. the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (the TRIPS Agreement),
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6. the UNESCO Convention on the Protection and Promotion of the Diversity Of Cultural Expressions, and
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7. the
UN
Convention on the Rights of Persons with Disabilities, including but not limited to Articles 21 and 30.
(b) Contracting Parties agree that, to the extent that this Treaty applies to literary and artistic works as defined in the Berne Convention, it is a special agreement within the meaning of Article 20 of that Convention, as regards Contracting Parties that are countries of the union established by that Convention.
(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:
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1. the person or
organisation
wishing to undertake any activity under this provision has lawful access to that work or a copy of that work;
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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;
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3. copies of the work are supplied exclusively to be used by visually impaired persons; and
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4. the activity is undertaken on a non-profit basis.
(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 their own personal use. This provision is without prejudice to any other limitations and exceptions that a person is able to enjoy.
(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:
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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;
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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
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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.
(d) In determining if a work is reasonably available in (c)(3), the following shall be considered:
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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
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1. 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.
(a) When implementing Article 4(c)(3), Contracting Parties shall ensure that there is a mechanism for determining the level of adequate remuneration to be paid to the owner of copyright in the absence of voluntary agreement. In determining adequate remuneration under Article 4(c)(3), the following principles shall be followed:
(b) Right owners shall be entitled to remuneration that is reasonable for normal commercial licensing of works, regarding the terms normally associated with the country, population and purposes for which the work is used, subject to the requirements of Article 11(c).
(c) In developing countries, remuneration should also take into consideration the need to ensure that works are accessible and available at prices that are affordable, taking into account disparities of incomes for persons who are visually impaired.
(d) It shall be a matter of national law to determine if remuneration under (a) is waived for works in certain formats, such as Braille, or for certain qualified entities.
(e) Persons who distribute works across borders will have the option of registration for remuneration payments in a single country, if the mechanism for remuneration in the country meets the requirements of this Treaty, and addresses the legitimate concerns of the copyright owners in terms of transparency, and remuneration is considered reasonable either for a global license for works that are distributed globally, or for a license to use works in specific countries, calibrated for the countries, users and purposes for which works are used.
For the purposes of this Treaty:
‘Work’ means any work of a type in which copyright could subsist whether or not such protection is provided by national laws or was provided but has expired, and includes literary, dramatic, musical and artistic works, databases and films.
‘Owner of copyright’ includes any person or body which can control access to a work by the exercise of exclusive rights or through other means, even where copyright does not subsist or no longer subsists.
‘Exclusive rights’ mean any rights provided in accordance with the other agreements identified in Article 4 or otherwise and includes the rights of reproduction, adaptation, and distribution and communication by wire or wireless means to the public.
‘Accessible format’ means an alternative manner or form which gives a visually impaired person or reading disabled person access to the work, including to permit a person with a visual impairment to have access as flexibly and comfortably as a person without a visual impairment.
‘Accessible formats’ shall include, but not be limited to, large print, with different typefaces and sizes all being permitted according to need, Braille, audio recordings, digital copies compatible with screen readers or refreshable Braille and audiovisual works with audio description. It shall also be understood that whether a format is accessible or not will vary depending on the purpose for which the work is to be used and so, for example, an audio recording of a book without indexing may be accessible for a visually impaired person listening for pleasure but not where a visually impaired person needs access for the purposes of study.
‘Lawful access’ means access provided by or with the permission of the copyright owner or through other legal means.
References to ‘copyright’ include copyright and any relevant rights related to copyright that are provided by a Contracting Party in compliance with the Rome Convention, the TRIPS Agreement, the WPPT or otherwise, and references to the ‘owner of copyright’ and ‘author’ shall be construed accordingly.
‘Database’ means a collection of independent works, data or other materials arranged in a systematic or methodical way and capable of being individually accessed by electronic or other means.