So, why is it so hard to get an international treaty to help people with disabilities that affect reading print? Welcome to the weird politics of intellectual property. Basically, we have approval of a policy, but are unable to get a treaty to implement that policy.
[Note: most of the coverage, and my headline, implies this is a treaty for just the blind, but it's actually for a wider group of people who can't use print, such as severely dyslexic people, or people who have a physical disability that interferes with holding a book.]
A major negotiating session on the treaty just concluded in Geneva, at the World Intellectual Property Organization, where the effort to gain such a treaty stalled. In this blog, I want to take you inside a current issue of global importance, which is leading to headlines in global newspapers and major media outlets like the Huffington Post.
The policy being debated is whether there should be domestic copyright exception for the benefit of people with print disabilities in all countries, and whether the nonprofit libraries helping these communities in one country can share their work with nonprofits in other countries. The essence of a copyright exception is that you don't have to ask permission to make a version of a given book for people.
Many rich countries have an exception: our Bookshare library came about because of Section 121 of the U.S. copyright law (often called the Chafee Amendment for the Senator who sponsored it in 1996). The European Union had a policy directive to European governments suggesting they pass such laws. The recent human rights treaty on people with disabilities, the Convention on the Rights of Persons with Disabilities the CRPD), says that access to accessible information is a human right. Article 30.3.3 of the CRPD says:
States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials.
The Obama Administration, which signed the CRPD, also publicly came out in favor of copyright exception policy in 2009, as covered in Wired.com: "Obama Sides With Blind in Copyright-Treaty Debate." This was a pretty rare action for a government (under Republican or Democrat presidents) that tends to back pro-industry IP treaties rather than something that is clearly pro-consumer.
International exchange is rare, and that means people with disabilities in the developing world are suffering. Bookshare has more than 50,000 books available in the developing world today thanks to socially responsible publishers. That's out of more than 155,000 titles available here in the U.S.
However, these publishers can only give us rights to books where they have the rights. Not only are books from mainly U.S., British, Canadian, and Indian publishers in English a good thing and interesting to people around the world, most people around the world also need the locally relevant books. These are the books used in primary and secondary education, as well as books in the local languages and relevant to the local culture. Languages often fail to respect national boundaries (often legacies of colonial pasts). All countries need a copyright exception to help people with print disabilities, as well as the ability to tap accessible books in their chosen language from other countries that speak that language.
The intellectual property industries (like the motion picture industry) haven't met a limitation/exception to copyright that they like. And, these industries have been very successful in driving international IP policies. The tide of international enforcement has been in favor of owners, not consumers and innovators. Because of this industrial pressure, rich countries with exceptions are trying to kill (or stall, or avoid) a binding treaty.
This position was well articulated by the straight-talking industry representative, Allan Adler, the vice president for Legal and Government Affairs at the Association of American Publishers. In this extensive video interview (done by Jamie Love of Knowledge Ecology), Allan is explicitly clear that while he's for narrow exceptions for people with print disabilities, he's against a treaty because it might set a precedent for more limitations on the rights of publishers. He paints a worst-case scenario of the American educational publishers losing their international markets because of a possible treaty (not the treaty for people with disabilities) that might have a major exception applying to education. Of course, the U.S. has limited exceptions applying to education and the world hasn't ended. Watching the power of industry at WIPO, the odds of a treaty passing with provisions that will destroy major export markets of an American industry seem to me to be just about nil.
Even one of the top advocates for a treaty for the blind, Rahul Cherian of Inclusive Planet, more or less said that's his concern as well (his comments on this issue are a little past three minutes into this clip). His biggest worry was that the treaty would be scuttled by the African delegates tying the disability issue to the larger issue of exceptions for education, libraries, and archives.
So, this industry pressure results in the United States delegation sitting on the fence. The U.S. used to argue for a softer solution, a recommendation or another kind of instrument not as binding as a treaty would be (assuming it was adopted and countries passed laws to meet their treaty obligations). Now, they are just silent on the treaty issue, while apparently trying hard to accomplish something towards the policy objective they support.
The main antagonists against the treaty are European, and they are fighting a rearguard action against the treaty. The two biggest players on the continent are France and Germany, and they are squarely against the treaty. Their opinions seem to drive the delegation from the European Commission. The UK and a couple of smaller countries are for the treaty, and most of the rest are (publicly) silent. However, the European Parliament has come out overwhelmingly in favor of the treaty, but this doesn't by itself lead to a change in negotiating stance from the Commission.
This leads to some odd messages coming from the negotiators for the Europeans. They spent most of the last negotiating session trying to weaken the proposed treaty by amendments: sort of a poison pill strategy against the disability groups. That is, you advocates might finally get your treaty, but it won't advance the policy you want. One way was to set the bar so high for using the exception that only groups in rich countries would qualify, which would defeat the purpose of helping the great majority of people with disabilities in developing countries that need it. The rich countries already have laws like this (like the U.S.). Another way is to put provisions into the law that overturn centuries of library practice, like requiring extensive record keeping about the books provided to library patrons (anathema to U.S. librarians used to fighting the government or publishers trying to overturn privacy presumptions).
Right after the session completed, the extensive press coverage of the negative role played by the European delegation led an EU Commissioner to issue one of the more disingenuous press releases I've had the pleasure of reading in years: Commissioner Michel Barnier determined to ensure equal access to books for visually impaired persons.
We've spent the last couple of years trying to kill this thing based on direction from industry and European countries like France and Germany, and we spent the last session trying to poison it, but we're looking bad right now to the rest of the world, and so we're going to say we've been for this treaty all along, but we just need France and Germany to change their mind (not an actual quote, to be clear!).
The Solution:So, what's the solution? It's time for the U.S. to ride to the rescue, and do the right thing. President Obama's team needs to make a decision and come out in favor of a treaty. If the U.S. did this, I believe the global consensus would move to passing an effective treaty that helped people with disabilities while protecting the interests of the publishing industry.
It's the right thing to do. The argument that doing the right thing might set the precedent for doing a possible wrong thing is weak on both intellectual and moral grounds. The U.S. has these copyright exception provisions, and if it's good enough for the U.S., it should be good enough for the world!
I'm sending a letter to the White House, and to Ambassador Ron Kirk (the U.S. Trade Representative), David Kappos (head of the U.S. Patent and Trademark Office), Senator Tom Harkin (the Senate's strongest advocate for the interest of people with disabilities) and to Professor Justin Hughes, the head of the U.S./WIPO delegation, encouraging them all to do the right thing: advocate for a treaty and make history for people with disabilities, by freeing their access to the books they need for education, employment and inclusion in society!
Selected recent press coverage and resources:
The Guardian (UK): US and EU blocking treaty to give blind people access to books
The Kojo Nnamdi Show (public radio in Washington DC): A Treaty To Make Books More Accessible
The European Blind Union's map of European government support/opposition to the treaty EU MS support for WIPO treaty spring 2012-03-29
The Transatlantic Dialog: Kicking and screaming at WIPO: Dragging the EU and the US to the negotiating table
Electronic Frontier Foundation:
International Failure: Are We Going to Let Countries Disenfranchise the Visually Impaired?