July 31, 2014

By the Time You Read This, Some People May Have an Easier Time Reading | Peer to Peer Review

During these last two weeks of June, delegates to the World Intellectual Property Organization (WIPO) are meeting in Marrakesh, Morocco, to negotiate around a proposed treaty on Limitations and Exceptions for Visually Impaired Persons. The treaty, which was first proposed in 2008 by Brazil, Ecuador, and Paraguay, has been the subject of debate for five years, and the Marrakesh meeting is being billed as the final push to get an agreement on a treaty.

The purpose of such a treaty would be to require, insofar as the WIPO can require its member nations to act, that each country adopt consistent limitations and exceptions into their copyright laws to allow that copies of copyrighted materials that are compatible with assistive software can lawfully be made to help people with visual disabilities read and otherwise enjoy the products of culture.

Such an exception would be very limited, and it would serve a very laudable purpose. So it is fair to ask why it has taken so long, seen several reversals on the part of the U.S. administration, and remains controversial going in to the Marrakesh meeting. The ironic reality is that there in the Moroccan desert, WIPO delegates are arguing over the camel’s nose.

This Treaty is Exceptional

To explain the controversy, we start with the fact that the WIPO develops and administers the international legal framework for intellectual property. That framework is built around treaties that outline the ways in which the copyright laws (among others) of all the member nations should be harmonized. Up until now, the harmonization has always been around rights, and little has been said about limitations and exceptions. International treaties dictate the minimum term of copyright protection (life of the author plus 50 years), the rights that such laws must protect, the prohibition on requiring rights holders to comply with formalities, and other matters that ensure consistent rights and enforcement of those rights. But there are no required exceptions; each nation is left on its own to craft whatever exceptions it needs, although the treaties have some (unhelpful and frequently ignored) language about what those exceptions should look like.

Of course, consistency around the rules for copying to make works accessible to the blind and visually disabled would be very beneficial; a patchwork of different approaches make services for such people very difficult. Library communities around the world uniformly support such consistency. But many rights holders groups are afraid that a treaty on ANY exception will be the camel’s nose, the first step toward letting the whole camel into the tent. They are afraid that ANY exception will start a trend, and so they are taking a stand against helping blind people.

Here is a quote from the Intellectual Property Owners Association about why they oppose the treaty for the blind: “…we are concerned about the VIP treaty as currently drafted, focused exclusively on L/Es [limitations and exceptions] and not on the rights holders whose copyrights are at stake. We are also concerned about the potentially negative, precedential effect that a one-sided, exceptions focused VIP treaty may have on parallel developments at WIPO and in other international negotiations.” In short, if we let the blind people have services to help them read, other people might get the idea. Alan Adler of the Association of American Publishers is even more blunt; he says he simply doesn’t trust developing nations to use an exception for the visually impaired responsibly. So in order to avoid a copyright Armageddon, we are being told by these rights holders’ groups, all international treaties on limitations and exceptions must be resisted, even when they serve the most obvious and public-spirited purpose.

Balancing Berne

One of the ironies here is that the opponents of this treaty talk about balance, and call the treaty “one-sided.” But it is the current international regime that is one-sided and unbalanced. For over a century, the Berne Convention and other treaties have focused exclusively on strengthening the exclusive rights in copyright and requiring ever more stringent enforcement of those rights. There has never been a single treaty that gave its attention to the rights of users, even though those users are the other side of that “balance” that intellectual property laws are intended to create. This treaty, if it is the thin end of any wedge, is the beginning of a push toward establishing internationally the balanced purpose which all intellectual property laws are intended to serve.

The most disturbing part of this debate is that the Obama administration does not seem to know which side it should be on. The President speaks frequently about the importance of reading and education, but his delegates seem uncertain about whether supporting a copyright exception to help the visually impaired is a good idea or a bad one. The administration initially opposed the treaty, at the behest of the rights holder groups, especially in the entertainment industry, to which it was indebted for so many campaign contributions. Then, as the memory of the election receded, the administration announced support for this particular treaty in 2009. Now, however, representatives who will be negotiating in Morocco are unwilling to repeat that support. The difference seems to have been made by a letter from the Intellectual Property Owners Association, written by a lawyer for Exxon, of all things, from which the quote above is taken, and which is described in this blog post by the American Library Association (ALA)’s Carrie Russell.

So now we are again trying to push the administration back to what it says are its basic values about the value of education, reading, and library services. There is a We the People petition asking the White House to reaffirm its support for the treaty on access for the visually disabled, and only a few days left to sign that petition. If the U.S negotiators can be convinced to again support the treaty, this ludicrous argument can perhaps be resolved.

In a recent interview, another lobbyist for one-sided copyright protection, former Senator, and now president of the Motion Picture Association of America (MPAA), Chris Dodd, wrote an editorial for the Huffington Post in which he outlined five principles that the MPAA believes should guide copyright reform. They are a wonderful example of the doublespeak by which these rights-holder industries claim to care about blind people while opposing any effort to make it easier for those people to experience the products of culture. He says, for example, that copyright should promote creativity and benefit consumers. Each of those statements, however, is followed by the assertion that the way to accomplish those goals is to give more money to the MPAA. He wants an Internet that “works for everyone,” but explains that by asserting that we must create modern protections for rights holders. Presumably he means protections like those contained in the Digital Millennium Copyright Act (DMCA), which, by the way, are also mandated by international treatises. So, once again, we see an approach that asserts a desire for fairness and balance, but really presses for a one-sided regime in which only the major companies that own commercialized intellectual property actually benefit; the goal of the law, in this perspective, is to keep users and independent creators out of the market, except as a source of revenue.

A lot is riding on the meeting in Morocco. By its end, we could see the beginning of a new era in which users’ needs are balanced with exclusive rights in a more responsible way. If the treaty is approved, the visually impaired will benefit, libraries will be more able to provide basic services, and copyright will look a little more like the balance for the public interest that it is intended to be. If it fails, however, we will have corporate doublespeak and a weak-willed Administration to blame.

 

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Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s (kevin.l.smith@duke.edu) principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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Comments

  1. Bob Martinengo says:

    The notion that a copyright exception for the blind and print disabled is somehow pro-educational doesn’t add up. For example, if a professor requires students to read a book that is not available in an accessible format, a blind student in the class will have to see if the book is available from an agency such as Learning Ally, who may have reproduced the book in an accessible format under the US copyright exception (known as the Chafee Amendment). If it is not, the student can go to the campus disability service office, who will have to scan the book, or, they may be able to get a PDF from the publisher by asking nicely.

    Now, wouldn’t it be more pro-educational if the college insisted that professors only assign books that were available in accessible formats, so that students with disabilities wouldn’t need to jump through those hoops?

    The problem with copyright exceptions is they don’t actually obligate anyone to DO anything. They simply shift responsibility for accessibility from the buyer to… society. And since society doesn’t have unlimited funds to remake every published work in an accessible format, the ‘book famine’ continues.

    • Kevin Smith says:

      It strikes me that there are several problems with this logic.

      First, the educational needs of students with visual or print disabilities are unlikely to be restricted to assigned textbooks. We hope other students will read more widely, why should that opportunity and expectation not extend to these students as well?

      Second, the language of the Chafee Amendment (section 121 of the Copyright Act) is such that it leaves disability services offices in considerable doubt about what they may or may not do as far as reproducing texts for blind students. More clarity is definitely needed.

      Third, while most publishers are very cooperative about providing PDFs on request, success is inconsistent and the time delays can be long. Again, blind students are subjected to restrictions that other students need not deal with. Also, depending on how it is encoded, the PDF from a publisher may not actually work with the adaptive software the student uses.

      Finally, when we talk about a WIPO treaty, we are thinking about persons with disabilities in about 150 countries, not just the U.S., where the Chafee amendment and the fair use provisions exist. Even if it was as easy in the U.S. as Mr. Martinengo suggests, it would not help people in other countries. A WIPO treaty does obligate member nations to adjust their national laws accordingly, although because of weak enforcement measures, it is certainly true that nations sometime ignore these obligations.

    • Bob Martinengo says:

      I may not have expressed it clearly, but my logic is sound. I believe one of the points you made is that the President says he values education, therefore the President should support the treaty. The implication being that the treaty supports education. I say it does not.

      A copyright exception should only be used when all other methods have failed. I gave the example of a college requiring its professors to only assign accessible materials. If all colleges did this, publishers wouldn’t have much choice but to make their products accessible. The fact that students may wish to read more widely doesn’t mean the college shouldn’t do everything in its power to make the required curriculum accessible, and that’s not happening.

      The fact that I disagree with your position doesn’t mean I agree with the MPAA, et al. Let me try out an analogy: we are in a big room (publishing) with a leaky roof (inaccessible books), and its always raining (books!). Every time there is a new leak, we ask the landlords (copyright holders) for permission to get a bucket from the closet, because they own the bucket rights. Most of the time they say yes, but this takes time and causes people to get wet. Since the leaks seriously affect people with rain disabilities, an exception is passed so ‘authorized entities’ don’t need permission to get a bucket – they can just grab one. Problem solved, right? But the authorized entities don’t have enough resources, so people are still getting wet. Is it the authorized entities fault? No, they are doing their best. Is it the landlords fault? No, they agreed to the exception. Hmm, no one to blame – how convenient.

      My point (and I do have one) is that a copyright exception does nothing to stop the leaks. If we really want to end the book famine, we need to stop squabbling over exceptions and start fixing the roof.