after Marrakesh

June 28 marks the one year anniversary of the completion of a diplomatic conference to facilitate access to published works for blind, visually impaired and print disabled people. Known as the Marrakesh Treaty, its purpose is to address the book famine that currently exists with respect to anyone of limited reading capability, by: (i) facilitating creation of appropriately formatted materials with the use of exceptions to copyright; and (ii) allowing countries to share materials, thereby reducing costs all round. Hailed as the Miracle in Marrakesh, it is the first multilateral treaty on limitations and exceptions to copyright, and gives credence to the view that negotiation among stakeholders is possible.

But no one had any expectation that the treaty would move forward smoothly. (Some of my earlier coverage is here and here). Prior to last year’s conference, Tatiana Sinodinou posted a detailed assessment of the situation; reminding us that these negotiations began more than thirty years earlier, when UNESCO and WIPO jointly created a working group to examine the possibilities for enhancing access to copyrighted material for those handicapped by visual or auditory limitations.

Sinodinou eloquently captured the tension of what lay ahead: “… The road to Marrakesh is open but is not paved with roses and the outcome of the negotiations is awaited with both hope and reservations.” Given that history, the cooperation found a year ago was worthy of attribution to the miraculous. But tangible benefit is yet to be had; the miracle may give way to mirage if concerted action is not taken.

With the treaty language adopted on 27 June 2013, delegates were invited to sign the treaty on 28 June 2013 and agree to:

… to introduce a standard set of limitations and exceptions to copyright rules in order to permit reproduction, distribution and making available of published works in formats designed to be accessible to [blind, visually impaired and print disabled persons] and to permit exchange of these works across borders by organizations that serve those beneficiaries …

Fifty-one countries immediately obliged. Over the past year, sixteen others signed. And this morning came the welcome news that Australia, Finland, Ireland and Norway have also signed.

PHOTO: Australia, Finland, Ireland & Norway sign “books for blind” Marrakesh Treaty – http://t.co/ZRjpR5EBoq pic.twitter.com/cPVTduhFIu

— WIPO (@WIPO) June 23, 2014

Canada’s absence of support is glaring, particularly given the role Canada purportedly played in negotiating the treaty; see Sara Bannerman’s remarks here and Michael Geist’s remarks here.

Geist points out that Canadian law will only need minor modification and that the Federal Government could make such changes during the upcoming scheduled review of Canadian copyright law in 2017. But, he also writes:

The biggest change would likely come from the need to establish an entity that would facilitate, promote, and disseminate accessible format copies of work and exchange information with other countries about accessible works. In other words, the treaty would require Canada to invest in improving access for the blind.

Fortunately, CELA might serve that need. Officially launched on 1 April 2014, with a formal debut at the Canadian Library Association’s National Conference on 29 May 2014, the Centre for Equitable Library Access (CELA) is a non-profit organization that serves Canadians with print disabilities. Supported by the Canadian Urban Libraries Council and the Canadian National Institute for the Blind, CELA already has 600 member libraries across Canada. Among the services provided by CELA are:

– A broad choice of formats including audio, braille, e-text and described video
– Access to a growing collection of over 230,000 alternate format items including books, magazines, newspapers and described videos
– A broad selection of genres: fiction, non-fiction, poetry, children’s, young adult, business, self-help, poetry and more
– A choice of delivery options: Direct download to computer, handheld devices and DAISY player; CD and braille mailed to home
– Training and expertise on accessibility

Of course, this only makes it more perplexing that our government is holding back on signing the treaty.

On a brighter note; Israel, which is not yet among the list of signatories, nevertheless amended its copyright law expressly to comply with the treaty requirements. At Israel Technology Law, Eli Greenbaum writes that the Israeli implementation exceeds the minimum standards required. (Hopefully, ratification is forthcoming quickly.) And it appears that India had planned to ratify the treaty by now; in his coverage last month for SpicyIP, Swaraj Paul Barooah writes: “G.R. Raghavender, Registrar of Copyrights, has stated that the ratification is expected by the end of May, 2014.” (Perhaps the election delayed the plans, but the new Indian government intends to act quickly?)

Until twenty countries ratify the treaty, and none have done so yet, the treaty cannot have force. In a lecture given at the Berkman Center on 23 April 2014, Justin Hughes, (chief negotiator for the United States for the Marrakesh Treaty) was unequivocal that much more needs to be done:

The real policy goal, the real thing we should care about is getting educational/cultural/informational materials into the hands of persons with print disabilities. And when you sign the treaty, you haven’t succeeded.

This journey is far from over; the road did not stop at Marrakesh.

 

More reading:

Explanatory notes, courtesy of World Blind Union.
User Guide to The Marrakesh Treaty, prepared by Jonathan Band.
The 1982 WIPO/UNESCO report is available at Knowledge Ecology International.

 

Update July 1  India becomes the first country to ratify the Marrakesh Treaty (dated to June 30, 2014)

Update June 30, 2016 — Canada accedes, thereby completing the 20 nations needed for the Treaty to enter into Force.

 

 

 

wonderful news from Marrakesh

James Love, writing for Knowledge Ecology International, gives the news:

The treaty will provide a dramatic and massive improvement in access to reading materials for persons in common languages, such as English, Spanish, French, Portuguese and Arabic, and it will provide the building blocks for global libraries to service blind persons. On the issues that mattered the most for blind persons, such as the ability to deliver documents across borders to individuals, and to break technical measures, the treaty was a resounding success.

Love also points out that, but for the intransigence of the United States and the European Union, the treaty could have been better. Nevertheless, “the effort of the blind and non-blind civil society NGOs was more powerful than the lobbying by Exxon, General Electric, Monsanto, GSK, Random House, Pearson Publishing, the MPAA and its member groups and others who opposed this treaty.”

And, a nice video  announcement from the World Intellectual Property Organization is here.

Reading the draft language (to receive formal approval on Thursday), enthusiasts of “fair” may enjoy this clause from Article 10:

Contracting parties may fulfill their rights and obligations under this Treaty through, exceptions or limitations specifically for the benefit of beneficiary persons, other exceptions or limitations, or a combination thereof within their national legal system and practice. These may include judicial, administrative or regulatory determinations for the benefit of beneficiary persons as to fair practices, dealings or uses to meet their needs consistent with their rights and obligations under the Berne Convention.

Said another way, even if a specific exception in the name of visually disabled persons does not exist in a domestic copyright law, fair dealing or fair use may be relied upon to ensure that the spirit of the treaty is not lost.

Congratulations to all those who worked so hard to bring a meaningful treaty into existence.

Update — June 30, 2016  As Canada becomes the 20th country to ratify the Marrakesh Treaty, it will enter into force September 30, 2016.

 

sightless eyes look to Marrakesh

Under the auspices of the World Intellectual Property Organization (WIPO), a diplomatic conference will soon convene in Morocco. From June 17-28, delegates from Canada and other countries are to meet in Marrakesh and conclude discussions concerning a treaty for access to copyrighted works for the blind or visually impaired. Whatever language emerges, those eleven days will close this chapter of international cooperation or lack thereof.

The dialogue of access began more than thirty years ago. Sightless eyes of added generations still look hopefully for some resolution that would augment the creation and sharing of copyrighted works in formats accessible to the blind or visually impaired. Yet on the eve of this final negotiation, the treaty language under consideration shows that more attention has been lavished upon securing the assets of publishers than facilitating access for others. That the majority of the world’s blind population are among the poorest in the world leaves many disappointed at best, outraged at worst, with this state of affairs and are calling for improvement.

No one would suggest that publishers be forced to abandon a legitimately earned market. But publishers have long acknowledged that the number of potential buyers among the visually impaired is too small to warrant investment in specialized formats. Consequently, the supply of copyrighted materials accessible for the blind or visually impaired is very limited in high-income countries, and almost non-existent in low-income countries. What is sought is an exception to copyright law whereby appropriate organizations may create copies of copyrighted works, in a format conducive to the needs of those they serve, and, to share such material across international borders.

For publishing representatives, such an exception seems fraught with danger. That by creating this precise exception to copyright, special requests would pour in from every other vested interest. Or worse, that the outcome will be more piracy as others take advantage of this exception to line their own pockets. In terms of other special interests, subsequent requests could be left for subsequent consideration with the option to reject. As for piracy, would-be pirates already have photocopiers, digital recorders, scanners and high-speed internet connections in their arsenal – they are not held back for want of an exception meant for the blind.

James Love, the director of Knowledge Ecology International, has for years written at length about the tortured journey of this treaty. Following the last iteration of talks in April 2013, he explained in detail the systematic dilution of the efforts of the World Blind Union (WBU) to create a usable treaty. Despite the extensive protection offered via copyright through domestic laws, international trade agreements and existing treaties (the Berne Convention and the WIPO Internet treaties come to mind), WBU’s proposed language has been layered with stringent conditions or removed entirely.

For instance, the publishing community wishes to negate the exception if a work is commercially available in a suitable form at a reasonable price. Each word—available, form, reasonable—will differ in interpretation from country to country, thereby inviting trepidation and, in all likelihood, lawsuits. Permission to circumvent a technology protection measure in order to make an accessible-format copy is in doubt. Earlier language to ensure that private contracts cannot override the exception has disappeared. And, perhaps most ominous, in a recent letter to the Obama Administration, the Intellectual Property Owners (IPO) Association (currently presided over by Richard F. Phillips of Exxon Mobil) has thrown their weight behind publishers’ insistence that a set of conditions known as the Berne three-step test be included.

The language of the three-step test seems transparent; reproduction of a copyrighted work may be permitted “… (i) in certain special cases, (ii) provided that such reproduction does not conflict with a normal exploitation of the work and (iii) does not unreasonably prejudice the legitimate interests of the author.” But a plain English reading of the law, particularly if the three tests are assessed individually, could invalidate the exception even though a WIPO interpretation may well support the exception, or indeed, deem the three-step test inapplicable depending on the situation at hand. The insistence upon the three-step test adds unnecessary complexity to the treaty and will likely only serve to frighten away any organization that lacks access to a competent intellectual property lawyer or scholar.

Last week the Canadian Library Association made public their letter calling on the Government of Canada to support the spirit and the intent of the treaty. Dated to 5 June 2013 and sent to representatives of both Industry Canada and Canadian Heritage, the Association asked that the Canadian delegation support: (i) the inclusion of libraries as authorized organizations who can utilize the treaty to provide services to their visually impaired patrons; (ii) the removal of requirements to assess commercial availability; and (iii) the circumvention of technological protection measures as necessary to create more materials in accessible format. The Association makes plain the challenge to be overcome: “With an optimistic estimate of only 5% of publications available in accessible formats, it is essential that all possible provisions are made to expand that volume of material.”

The paucity of materials available for the blind or visually impaired has been described as nothing less than a book famine. Reading is critical for all individuals to progress in life but what if there is nothing to read?

My earlier coverage on this topic is here and here. In his current technology column, Michael Geist details the objectives of the treaty, its challenges, and asks if Canada would “stand up for the rights of the visually impaired?”

Update — June 14, 2013  Sara Bannerman has written about the treaty as well; she notes that: “This is an opportunity for Canada to show leadership and vision, and to emphatically insist on the fullest and most meaningful access for the visually impaired.”

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.

anniversaries

“Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms.”

Convention on the Rights of Persons with Disabilities
United Nations General Assembly, adopted 13 December 2006.

An extraordinary General Assembly of WIPO is scheduled for 17-18 December 2012 in Geneva; delegates will consider whether or not to convene a diplomatic conference in 2013 to further examine the necessity of an international treaty to facilitate access to copyrighted material for visually impaired people. This follows the 25th session of WIPO’s Standing Committee on Copyright and Related Rights which took place last month. IP Watch described in detail the lack of progress during the November meetings, with non-governmental organizations (NGOs) unable to fully participate in the drafting of the proposed language:

 The drafting of the document is being done in informal sessions inaccessible to NGOs, which are left guessing what is happening in those sessions and become aware of the progress only when a new text is issued.

At the end of the November meetings, Chris Friend (Chair of the Right To Read campaign of the World Blind Union) drew attention to a key issue:

[The treaty needs] to clearly permit cross-border sharing of accessible books both between organisations and directly from organisations to blind or print disabled individuals. We reject complicated requirements for checks on whether the books are commercially available. Such procedures would sacrifice the usability of the treaty on the altar of publisher reassurance.

The irony is that very little material is commercially available. By the World Blind Union’s figures: “Only some 7% of published books are ever made accessible (in formats such as Braille, audio and large print) in the richest countries, and less than 1% in poorer ones.” The paucity of materials for the visually disabled has been acknowledged by Alan Adler (Vice-President of Legal and Government Affairs for the Association of American Publishers). During an interview conducted on 18 July 2012 by Jamie Love of Knowledge Ecology International, Adler said that accessible formats are  “a difficult thing to provide market solutions for … there is a need for some form of regulatory assistance in that area.” Where Adler is not comfortable with further regulatory assistance by way of limitations on copyright, is in the realm of library and educational provisions. When asked by Love whether the AAP had position on achieving a treaty or some other form of international agreement, Adler went so far as to say that it “would not have been as much of a problem if we were only working on the issue of print disabilities … .” But given the risk of setting precedent (with other causes already standing in line) the AAP has reservations.

So if, perhaps, maybe, the treaty for visually disabled people is disassociated from other arguments for granting more meaningful rights of public access, then a workable treaty can be reached? I would like to be optimistic but the discussion surrounding access to copyrighted materials for the disabled has been ongoing for thirty years. WIPO and UNESCO together proposed a Working Group for such access in 1981. The Group met for the first time from 25-27 October 1982; the report of which was released on 3 January 1983.

The principal concern voiced by the publishing sector today was as much in evidence in 1982: that a special provision would undermine the exclusive right of authors.  But the inability of the market to meet the needs of the disabled was also evident: “… that the number of handicapped persons in each country was relatively small and therefore the market for materials intended for them limited. This fact seemed to the experts to fully justify the exceptions which are explained in the following paragraphs.”

Regrettably, the demands of the publishing sector have only become more stringent as the decades went by. A treaty for rights of access for the visually disabled may be possible; although, the United States continues to oppose the strength of a treaty.  But even if the United States concedes as a gesture of international cooperation, the language of the treaty will be highly restrictive. Carolyn Rossini, writing for the Electronic Frontier Foundation, indicates that the November meetings did not yield consensus upon the more controversial aspects (circumventing digital locks and allowing for cross-border cooperation) but did manage to narrow the possible-treaty’s scope (the needs of the hearing disabled are not included and all audiovisual works are excluded from consideration). More telling is what has appeared in the draft text; specific reference is made to the three-step test. As I wrote a year ago, this language from the Berne Convention does not close the door on flexible exceptions to copyright (the American regime of fair use stands as a shining example) but the copyright holders invoke the test to incite doubt and fear.

Copyright holders are adamant that appropriate safeguards be enacted along with better access to copyrighted works; it is odd that they do not see libraries as a natural ally in this process. As Winston Tabb (Dean of Libraries and Museums at John Hopkins University, Chair of the International Federation of Library Associations and Institutions (IFLA) and recipient of the 2012 L. Ray Patterson Copyright in Support of Users Rights) stated to WIPO in reference to earlier draft text:

Visually impaired and print disabled people are deprived of the basic human right to read because this committee has not been able to agree.  The library community, which is the major provider of services assisting blind people to access information, believes that the proposed treaty that the World Blind Union and related organizations is seeking is right, fair, just, and long overdue.

Arguably, the library community is a major provider of services assisting all people and the international library community network is well-positioned to assist in fulfilling the due diligence of appropriate safeguards.

If we take the Convention on the Rights of Persons with Disabilities seriously, then the needs of the disabled are a subset of the needs of the public. The publishing sector would do better to enlist the aid of IFLA and its members, and work towards maintaining the legitimate role libraries play in the dissemination of copyrighted works. The matter of transformation and supply of works is only a means to the end, not an end unto itself. As was decreed 64 years ago, it is a fundamental right for all people to “freely participate in the cultural life of a community.” Libraries are sites where copyright and this fundamental right are reconciled.

“Everyone has a right freely to participate in the cultural life of the community, to enjoy the arts and to share in the scientific advancement and its benefits.”

Universal Declaration on Human Rights
United Nations General Assembly, adopted 10 December 1948