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Why Is the Obama Administration Not Standing Up for People with Disabilities?

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On Monday June 21, 2010, the World Intellectual Property Organization (WIPO) will consider whether to adopt a work program on a treaty for persons who are blind or have other disabilities. Behind the scenes, the Obama Administration has been trying to scuttle the treaty, pressuring other countries to abandon support for the treaty, and proposing an alternative to the treaty that would do almost nothing to expand access to copyrighted materials.

The recent U.S. actions against the treaty are orchestrated by the United States Patent and Trademark Office (USPTO), an agency headed by David Kappos.

David Kappos
David Kappos
There are now many promising technologies to expand access for people who are blind or have other disabilities. Digital works delivered over the Internet or through cell phones can be accessed with refreshable braille readers, through synthetic text to speech, or in other ways, It is often expensive to take books and other copyrighted works created in inaccessible formats, and to make digital versions that are accessible, and also easy to navigate and use. (See the work of the DAISy Consortium).

The United States spends tens of millions of dollars annually to create accessible versions of copyrighted works, and despite this investment, at best only about 5 percent of published books are accessible, and far fewer periodicals and informal publications protected by copyright. Most of the work in the U.S. is done under the Chafee Amendment -- an exception to the rights of copyright owners. According to WIPO, 57 countries have similar exceptions. The actual details of the exceptions vary considerably from country to country, and the majority of developing countries have no exceptions for persons disabilities.

The United States, like most other countries, will not export its accessible formats of works to other countries. The U.S. does not export to Canada, Jamaica, Kenya, South Africa, England, Australia, India or the many countries where people speak English as a second language. Spanish speaking countries do not share accessible works with each other. Each country pretty much has to create its own separate libraries for the blind. This inefficient legal system has contributed to an extreme scarcity of accessible works for persons with disabilities, particularly in developing countries. Uruguay, for example, can only produce about 50 new accessible works per year.

For more than 25 years, the World Blind Union, the International Federation of Library Associations and Institutions (IFLA) and others have pressed WIPO to create an enabling legal environment for the sharing of accessible works across borders. This involves two things -- agreements on the rules for importing and exporting works, and some harmonization of the exceptions themselves. To this end, a strong treaty proposal was introduced in WIPO in 2009, by Brazil, Ecuador and Paraguay,now joined by Mexico.
2010-06-18-chris_friend_27may2010_IMG_0241.JPG
Chris Friend of the World Blind Union
at WIPO on May 27, 2010.

Publishers have opposed the treaty. At first the U.S. opposed discussion of the treaty, but seemed to have changed its position in December of 2009. But more recently things have changed again, and not for the better. What David Kappos recently described as a "breakthrough" in the negotiations is a self described "consensus" proposal that seems to have no consensus, and consists of a weak recommendation that countries consider authorizing exports of works, under a new regulatory regime designed by publishers.

The USTPO has been lobbying developing countries to abandon the more ambitious and important treaty proposal, and reportedly falsely claiming to have the support of blindness groups in the United States for doing so.

What changed? Three important things.
Ron Kirk
Ronald Kirk, head of USTR
  1. In 2009, Susan Crawford worked in the White House, and was an important supporter of the treaty. Susan left the White House staff at the end of last year.
  2. Lobbied by Publishers, including the (AAP), the MPAA, RIIA, SIIA and IIPA, Ambassador Ronald Kirk, has weighed in against the treaty.
  3. Justin Hughes, the head of the US delegation to WIPO, has become a candidate to replace Marybeth Peters, as the new Register of Copyrights for the Library of Congress. Hughes does not want to alienate the AAP, MPAA, RIIA, SIIA and IIPA.

On Monday, four days of negotiations on this issue begin. Blindness and other disabilities groups are being asked to lower expectations, and accept something smaller, and less important, than what they need and what should should have. I'm frankly embarrassed that my own government is not providing more leadership on this issue of human rights and social justice. I expected more out of the USPTO under David Kappos.

The situation in Europe is also depressing. After a long period of opposition and then indifference to the Treaty proposal, the European Union has offered its own alternative. How weak it it? Among other things, it requires the "consent" of copyright owners to share works under exceptions to copyright laws.

Why are the publishers and their responsive friends in the US and EU governments so opposed the efforts to create strong global exceptions for persons who have disabilities? They are afraid this will set a precedent for other global exceptions, in areas where the markets are significant, like education.

Pictures of David Kappos and Ambassador Kirk taken from agency web pages. Picture of Chris Friend taken by author, and licensed under any creative commons license.