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.”

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