things to read

Two new volumes relating to intellectual property are now available.

1) The United States’ annual Special 301 report, a charade of evaluation of intellectual property enforcement, was released on May 1. (As I have written before, this process has no international validity.) For those interested, in this year’s report Canada has moved up one level on the scale of American disgrace; we are on the  ”Watch List” instead of our previous standing of “Priority Watch List.”

The American government is pleased with Canada’s Copyright Modernization Act (replete as it was with protection from circumvention of digital locks) and the introduction of legislation “to strengthen IPR enforcement, which included provisions that would provide ex officio authority to Canadian customs officials to seize pirated and counterfeit goods at the border (p.46)”. However, concerns still exist with respect to Canadian patenting practices, including “the impact of the heightened utility requirements for patents that Canadian courts have been adopting recently (p.46).” (I wrote about our courts’ reluctance to uphold a patent that did not live up to expectations; see here.)

2) Much more interesting is the release of a new book by University of Ottawa Press. The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law is available for purchase and for free download via a Creative Commons license. Michael Geist served as editor; he envisioned the collection and ensured its realization. The book features Geist’s work along with contributions from thirteen other scholars, including me (see here for some details). It was a pleasure to participate in such a well-executed project. Congratulations must go to Geist and his entire team of students, editors, reviewers and the staff at University of Ottawa Press.

international publishers v. Indian photocopying

InfoJustice.org posted a brief note about a lawsuit underway in India; one which pits international publishers against a photocopy service at Delhi University. The complaint, filed in 2012 and now being heard in the courts, concerns the compilation and distribution of course packs. “This lawsuit sent shock waves across the academic community, leading more than 300 authors and academics including famed Nobel laureate Professor Amartya Sen to protest this copyright aggression in an open letter to publishers.”

In “Why students need the right to copy,” published by The Hindu, Shamnad Basheer writes: “What makes the lawsuit particularly egregious is the fact that publishers are effectively seeking an outright ban on all course packs, even those that extract and use no more than 10 per cent of the copyrighted book.” Basheer, a prominent intellectual property scholar, is keenly aware that such use would be considered legitimate in the United States and that Indian law offers even wider latitude for unauthorized uses of copyrighted works for educational needs:

… unlike the U.S., [Indian law] embodies a separate exception, under which it is perfectly legal to reproduce any copyrighted work during the course of educational instruction. These exceptions reflect a clear Parliamentary intention to exempt core aspects of education from the private sphere of copyright infringement. Eviscerating these exceptions at the behest of publishers will strike at the very heart of our constitutional guarantee of a fundamental right to education for all.

Noting that the publishers have dangled the offer of collective licensing to Indian educational institutions, Basheer is emphatic that this is a bad idea. He points to Canadian misfortune in this area; he indicates that the costs and administrative burdens inherent to licensing are unnecessary when a suitable educational exemption is available under the law.

Basheer also comments upon the paucity of material available for the Indian market:

That a majority of educational textbooks are priced above the affordability range of an average Indian student is well known. A recent empirical study done by me along with my students reveals that a vast majority of popular legal and social science titles have no corresponding Indian editions and need to be purchased at rates equivalent to or higher than in the West… (emphasis mine)

The Indian court is aware of the public interest implicated by this case and has permitted a students’ association to be party to the suit. The Association of Students for Equitable Access to Knowledge (ASEAK) expressed their concerns to Oxford University Press, Cambridge University Press and Taylor & Francis, and conveyed the open letter. The displeasure of 309 members from the international academic community, including the 33 authors whose works were allegedly infringed, is plain:

As authors and educators, we would like to place on record our distress at this act of the publishers, as we recognise the fact that in a country like India marked by sharp economic inequalities, it is often not possible for every student to obtain a personal copy of a book. …  In that situation the next best thing would have been for multiple copies of the book to be available in the library so that students are able to access these books without any difculty. But given the constraints that libraries in India work with, they may only have a single copy of a book and in many instances, none at all. The reason we make course packs is to ensure that students have access to the most relevant portions of the book without which we would be seriously compromising their education.

The argument made by publishers for strong copyright enforcement is based on presumed losses caused to them. Given the pricing strategy followed by publishers, we do not believe that students are the primary market for these books and hence it would be disingenuous to presume that every photocopied article or book would be a lost sale.

Moreover, the academic members question the claim that academic publishing will cease without publishers’ investments:

This claim hides the fact that most academics are able to write books because they are supported by public infrastructure and money by virtue of being employed by universities or research centers. Academic writers are paid salaries and make their living from the university system, which in India is still largely government subsidized. … [In effect] the profits of academic publishing houses are under-written by tax-payers’ money.

The students also submitted other letters of concern. Amartya Sen appealed to publishers’ consideration of the importance of education and pragmatically suggested this suit is not in their own long-term interests:

…. In fact, the introduction the students get through these course packs must tend to be favorable to the sale of books in the future when the existence and the quality of arguments presented in particular books become more familiar to the next generation of earning adults…

Perhaps the best argument for throwing out the case is from another plaintiff-without-consent, Raju Ramachandran.  He modestly describes himself as a lawyer (he is a senior advocate with the Supreme Court of India):

 I am of the clear view that photocopying of [my] essay for educational use would be ‘fair use’ and would also fall under the educational exception in our copyright law. I would also like to make my position as an author very clear that nothing can be more fulfilling for me than the fact that the student community would be reading and discussing my views. I would be deeply disappointed if students are not able to access and debate my views only because they are unable to buy the book in which my essay is printed.

The case will continue on May 8, 2013.

from Braille to Mehta

“Access to communication in the widest sense is access to knowledge, and that is vitally important for us if we are not to go on being despised or patronized by condescending sighted people. We do not need pity, nor do we need to be reminded we are vulnerable. We must be treated as equals – and communication is the way this can be brought about.”
- Louis Braille (1809-1852), 1841 — quoted by Clifford E. Olstrom – Undaunted by Blindness.

“In India, one of the poorest countries the world has ever known, the lot of the blind was to beg with a walking stick in one hand and an alms bowl in the other. Hindus consider blindness a punishment for sins committed in a previous incarnation. But my father, a doctor, tried to fight the superstition and give me an education, like his other children, so that I could become, as he used to say, a self-supporting citizen of the world.”
- Ved Mehta (1934-), 1985  Sightless in a Sighted World.

James Love, writing for Knowledge Ecology International, gives the disappointing news that even the modest progress made in reaching a treaty for better access to copyrighted materials for the blind, is now a thing of the past. Publishers’ groups are “demanding that the Obama Administration push new global standards for technical protection measures, strip the treaty text of any reference to fair use and fair dealing, and impose new financial liabilities on libraries that serve blind people.” Under these terms, such a treaty will hardly be worth the paper it is written on.

No-one ought deny publishers’ legitimate market growth or expansion, but the publishing community has long since acknowledged that they have little interest in the small market of materials for the visually disabled. To put it crassly, there are not enough wealthy blind people out there. According to the International Agency for the Prevention of Blindness (IAPB), which works in concert with the World Health Organization, “… about 285 million people are visually impaired worldwide: 39 million are blind and 246 million have low vision (severe or moderate visual impairment).”  And, “about 90% of the world’s visually impaired people live in developing countries.”

Ved Mehta is an iconic writer from India. Like my parents, he straddled the end of the British Raj and the emergence of a new India (with all the bloodletting of Britain’s legacy known as Partition.) That he achieved acclaim in the West made his story that much more compelling to those of us who encountered his work before Canada was the multicultural haven we speak of today. Reading the autobiographical entry from his official website though, I could not help but think something was missing:

Before I turned five, [my father] sent me to what he had heard was the country’s best school for the blind, in Bombay, 1,300 miles away from our home, in the Punjab. It proved to be, like the score or so of other such schools in the country, an orphanage cum asylum. I spent a total of three years there, sick a good part of the time, and then was returned home because the school had nothing more to teach me.

The story as told to me by my mother was that Ved Mehta’s father insisted on removing him from that school, or possibly an earlier school. Reason being, the students were being taught only to weave rattan furniture for prospective means of livelihood. Visiting his son, Dr. Mehta saw the reality of a weaver’s life: calloused fingertips. His son would not be able to read Braille. And so ended that assay into schooling, available in India. Later Mehta was accepted into a school for the blind in the United States:

My father raised the necessary money, and I flew there alone when I was 15. I was finally on the road to a formal education. In due course, with the help of many scholarships, I earned a B.A. from Pomona College, in California, a B.A. from Balliol College, Oxford, and an M.A. from Harvard. While I was still a student, I started writing for The New Yorker.

Mehta describes the Social Adjustment program at his school:

“To be blind is an uphill struggle,” Mr. Chiles observed … He was almost totally blind himself. “You’ve got to sell yourself to every sighted person. You’ve got to show him that you can do things that he thinks you can’t possibly do. … Anything you do wrong in the sighted world, … like dressing untidily or putting your elbows on the table while eating, sighted people will chalk up to your blindness, even if most of them commit those sins themselves. They will call you poor wretches, feel sorry for you, and, to my way of thinking, commit the worst sin of all; excuse it on the ground that you’re blind.”

Like Louis Braille, Mehta had devoted parents who did all that was humanly possible to ensure that their son had a fair chance in life. But such families are rare in developing countries. When a family itself is struggling, the disabled inevitably is sidelined. Moreover, the social stigma of disability is not easily overcome under such circumstances.

Imagining the challenges of the disabled in a first world country is daunting enough; to stretch one’s imagination to disability in developing countries seems an impossibility. At least so for the publishing sector.

Update — April 23: The Huffington Post has published a detailed report by James Love on the degradation of the treaty. Love also sheds greater light on why the MPAA has become such a vociferous opponent of the treaty, even after having ensured that audio visual works were removed from the scope (thereby excluding the deaf and hard-of-hearing from any benefit.)

Update — April 24:  The Huffington Post has published a rebuttal from Chris Dodd, Chairman and CEO, Motion Picture Association of America. In contrast to Love’s detailed analysis, Dodd confines his remarks to speaking in generalities. According to Dodd, some “… groups have advocated for the inclusion of certain provisions that would establish lower thresholds for copyright protection and weaken certain means used for protecting copyright works.”  As Love details, the World Blind Union and those who actively believe in this treaty, wished for a treaty that “does not change the larger, global copyright system.”  Whereas the publishing community has sought to instill more complexity in the treatment of the exceptions necessary for a better sharing of copyrighted works, for visually disabled people around the world.  Which is (was?) the point of the treaty itself.