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.
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!).
Selected recent press coverage and resources:
Boing Boing
US stonewalling treaty that would help disabled people access copyrighted works
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?
Follow Jim Fruchterman on Twitter: www.twitter.com/jrandomf
Mr. Fruchterman intends to write a letter to the White House and others which implies that -- prior to receiving such letter -- the recipients are unaware as to what is 'the right thing to do'.
Mr. Jamie Love of KEI (mentioned above) recently wrote in an open letter published on his website:
"When there is a moral vacuum at the top, as is the case for the White House on matters concerning intellectual property and access to health care in developing countries ... it is not surprising that an agency like the USPTO has become an enemy of moral values and basic decency - "
The Int'l Federation of Library Assocs (IFLA) -- a strong treaty supporter -- wrote 30 AUG on its website:
"Despite lengthy informal sessions into the evenings and over the weekend during SCCR/24, the Committee was unable to finalise text on copyright exceptions that would ensure access to content for the world’s blind."
So the 3 day session in OCT (if held) and changing the mindset of treaty opponents should prove pivotal.
"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 …â€
That actual 2010 US ‘Consensus Instrument’ proposal can be found here:
http://www.wipo.int/edocs/mdocs/copyright/en/sccr_20/sccr_20_10.pdf
The proposal was met with wholesale derision (my words) by Member States supporting a treaty (mainly those who would be net importers of copyrighted accessible materials) and the disability rights community. Mr. Fruchterman’s intervention at SCCR 20 was reported by the WIPO Secretariat as follows:
“The representative of Beneficent Technology, Inc.(Benetech) supported the need for a binding instrument to ensure that blind and print disabled people around the world had unlimited access to copyrighted books, but not a treaty that establish a thicket of bureaucratic requirements to discourage access.â€
It is easy to say that the US position on international IP rights is force-fed by industry lobbyists. There may also be a sense of exasperation in the Obama Administration that their good faith efforts in 2010 were met with such a caustic reception.
Whatever the faults in that Consensus Instrument, the results of its acceptance could not be much worse than the sad state of affairs today.
There are other options under existing law in the US, UK, and other countries whereby copyrighted materials in accessible format can be exported to other especially lesser developed countries.
Mr. Fruchterman wrote in MAY 2011 on his Benetech blog:
“(We need) reliable confidence that exporting and importing are legal today; not ‘try it and see if you get sued.’â€
To which I responded with the Comment:
“Try-it-and-see-if-you-get-sued is how things often work in the legal arena and takes someone or some organization willing to put themselves at-risk to establish a test case or precedent…
The US Copyright Office itself is on record responding to a WIPO questionnaire that -- under certain conditions -- export of copyrighted materials in accessible format is allowed. The UK Intellectual Property Office recently stated:
7.165 Although UK law does not explicitly prevent such accessible works being exported to other countries, licensing schemes that cover this exception do limit use to the EU.
The UK Visually Impaired Persons Act 2002 has 2 components: Article 31B requires licensing and 31A does not. It is a canon of UK Law that that which is not prohibited is allowed.
So besides advising The White House on 'the right thing' to do, there are other options that the Disability Rights community chooses to ignore in favor of a binding-treaty-or-bust posture.
I do object to provisions that have been proposed by the Europeans at WIPO to make use of the copyright exception that go way beyond today's US law:
- subject to publisher permission (that's the status quo today),
- subject to government approval,
- subject to burdensome requirements that almost no developing world libraries or NGOs could meet, or
- track what people with disabilities are reading and report that back to publishers
And that's just a few of the "poison pill" provisions. Many more have been proposed through this process.
Then he says: "I do object to provisions that go way beyond today's US law ... that subject to burdensome requirements that almost no developing world libraries or NGOs could meet"
However, many of the provisions deployed by the large Non Profit 'Authorized entities' including Bookshare in the USA, and part of the reason that it has 'worked so well', also go way beyond what is required in the Section 121 'Chafee Amendment' including watermarking, encryption, detailed passwords and download records, etc. which is one reason why it has been a success. That and the fact that any widespread copyright infringement in the USA would likely be prosecuted -- maybe not so in the developing world.
If you read th CRPD, you will find the phrases 'least possible cost', 'affordable cost', 'without additional cost', 'at minimum cost', etc. You will not find the words 'free' or 'no cost' or 'without compensation' to the rights-holder'. A 'balance' may thus be created such that the number of copies in accessible format provided at no cost may greatly exceed those paid for in the conventional distribution channels. For many who might oppose such a treaty, therein lies the rub.
“RNIB therefore supports a broad definition along the lines of the Right to Read Alliance definition of print impairment, i.e. which covers the estimated one in eight of us who cannot read standard print due to sight problems, dyslexia, or a disability which makes it difficult for us to hold a book or turn a page.â€
The above also ties into Mr. Fruchterman’s citing of the UN CRPD Article 30 that countries enact all appropriate measures – Is giving copyright exclusion to over one billion persons on the planet really what is appropriate?
Mr. Fruchterman says: “Of course, the U.S. has limited exceptions applying to education and the world hasn't ended.†However , in the current text there are options that would omit almost all of the security measures that are extent in the USA including Mr. Fruchterman’s own Bookshare.org ‘7 Point Security’ control and registration of Non Profits or other entities that would supply copyright exempt accessible copies.
As with many instances before, the ‘right thing’ to do is what Mr. Fruchterman says is the ‘right thing’ to do.