An international treaty for reading disabled persons at WIPO

Do we need an international treaty for reading disabled persons?

Yes, and today the World Blind Union is seeking international support for a proposed Treaty for Reading Disabled Persons at the World Intellectual Property Organization (WIPO). The next meeting where this matter could be taken up is at the WIPO Standing Committee on Copyright and Related Rights taking place in Geneva, May 25-29, 2009.

Should the US delegation to WIPO support the proposal?

Yes, the U.S. delegation should be the leader in supporting this proposal. First, to be consistent with newly elected President Barack Obama, “We must build a world free of unnecessary barriers, stereotypes, and discrimination…policies must be developed, attitudes must be shaped, and buildings and organizations must be designed to ensure that everyone has a chance to get the education they need and live independently as full citizens in their communities.” (April 11, 2008,) http://www.whitehouse.gov/agenda/disabilities/

U.S. support for this treaty would also be consistent with historical and current practices since in many ways, the U.S. has done well with designing policies that positively affect members of the disabled communities.

The US Congress has historically recognized that copyrighted works should, with respect to fair use, be accessible to and usable by people who are blind. The legislative history of the Copyright Act of 1976 states that:

Another special instance illustrating the application of the fair use doctrine pertains to the making of copies or phonorecords of works in the special forms needed for the use of blind persons. These special forms, such as copies in Braille and phonorecords of oral reading (talking books), are not usually made by the publishers for commercial distribution. While making multiple copies or phonorecords of work for general circulation requires the permission of the copyright owner, a problem addressed in section 710 of the bill, the making of a single copy or phonorecord by an individual as a free service for a blind person would properly be considered a fair use under section 107. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. (1976).

Here again, in 1931, an Act of Congress established the free national library program of reading materials for visually handicapped adults. The program was expanded in 1952 to include blind children, in 1962 to include music materials, and in 1966 to include individuals with physical impairments that prevent the reading of standard print. It depended on the cooperation of authors and publishers who granted permission to reproduce works in special formats without royalty. Please note that the period required to obtain permission from the copyright holder has sometimes been significant. Even today, it is estimated that blind, visually impaired and other reading disabled people have access to less than 5% of what you can read.

And again, in 1984, the U.S. Supreme Court stated that copying “of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying.” (Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 714 (1984))

Of course there are also other U.S. specific limitations on the exclusive rights of copyright owners to ensure access for blind and visually impaired individuals are to be found in Section 110(8) which excludes performances specifically designed for and directed to people who are blind or visually impaired using particular facilities; and in Section 121 (the Chafee amendment) which allows authorized entities to reproduce copyrighted materials and convert these materials to accessible formats for the use by blind or other persons with disabilities.

Now, the Library of Congress must continue to ensure that the DMCA’s “Circumvention of Copyright Protection Systems” provisions do not undermine the nation’s commitment to fair use rights that enable participation by blind and visually impaired people. The rule is that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of four classes of copyrighted works. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook’s read-aloud function and that prevent the enabling of screen readers to render the text into a “specialized format.” For purposes of this exemption, “specialized format,” “digital text” and “authorized entities” have the same meaning as in 17 U.S.C. 121

One important exempted class is based upon proposals by the American Foundation for the Blind and five major library associations to address some of the problems experienced by the blind and visually impaired in gaining access to ebooks. Clearly Ebooks can offer access in an unprecedented way to the blind and the visually impaired persons. They can allow the user to activate a “read-aloud” function. They can also permit access by enabling screen reader software, a separate program for the blind and visually impaired capable of converting the text into either synthesized speech or braille.

By using access controls tools, publishers of ebooks can disable these functions and today too many ebooks are distributed in that way. The disabling of these functions prevents the blind and visually impaired from engaging in particular noninfringing uses such as private performance, and basically prevents access to these works by blind and visually impaired users. Let’s be clear, the uses that visually impaired persons make by using the “read- aloud” function and screen readers are noninfringing, and reasonable in our context.

To be fair, a literary work must exist in ebook format to be included in the exempted class. In addition, the exemption is not available if any existing edition of the work permits the read-aloud function or is screen reader-enabled. A publisher can “avoid” the exemption by ensuring that for any of its books published in ebook form, there is an edition accessible to the blind and visually impaired persons.

Thus, for some, the US situation looks pretty good and it is in many ways. Bookshare (http://www.bookshare.org/) provides an amazing collection to people with qualifying disabilities. “With a Bookshare membership, you can download accessible titles onto your computer and read them at your convenience. A variety of reading tools give you a range of options for reading your downloaded books.” It is the world’s largest accessible online library for people with print disabilities, and as of this year a collection of more than 43,000 digital books comprising a wide range of general fiction and non-fiction, educational books, children’s literature, textbooks and best sellers.

According to Jim Fruchterman, CEO of Benetech which operates Bookshare, the goal is “to put Silicon Valley technology into the hands of people with disabilities to help them live powerful, independent lives. “Bookshare expects to offer 100,000 books in the Bookshare library and serve hundreds of thousands of users by 2012.”

So what is the problem we need to solve today and how will an international treaty help to solve it?

Today, the out-of-date legal environment is a barrier for the disabled. Instead of new technologies creating opportunities in a world where visually impaired and other reading disabled persons from all over the world should have access to a variety of documents at the same time as people without reading disabilities, roadblocks are created. It is often too difficult or impossible to locate and obtain licenses from copyright owners. Even though most countries have limitations and exceptions in copyright laws to enable works to be made accessible for persons with reading disabilities without the permission of copyright owners, the provisions vary considerably from country to country (even among European countries), and are often restrictive in practice, or focused on older technologies. Moreover, the current regimes of limitations and exceptions do not encourage the import and exports of accessible works (see Sullivan report).

Canadian blind organizations cannot have easy access to the US collections (or France’s for the Quebecois.) So, in reality, with all of the limitations and barriers in place, the total number of works in accessible formats is low for the average reading disabled person, particularly in smaller market countries.

What are the main features of the proposed treaty that will assist the disabled and how will the disabled benefit?

The two main features of the proposed treaty are (1) to provide a minimum standard for limitations and exceptions to copyright for the blind, visually impaired and other reading disabled persons, and (2) to allow and encourage cross-border importation and exportation of works in accessible formats.
The biggest beneficiaries of the treaty will be blind and visually impaired persons living in developing countries, as they will have far greater access to works currently only available in high-income countries such as the U.S. However, all countries, including the U.S., will benefit from the liberalization of access to foreign collections of accessible works (do you only want to read U.S. authors?), and from the expansion of the rights for the visually impaired. Moreover, given the importance of economies of scale, everyone will benefit from the larger global market for accessible works.

The next meeting of the WIPO Standing Committee on Copyright and Related Rights will take place in Geneva, May 25-29, 2009. The U.S. delegation’s support and leadership for increased access globally, equivalent or even better to that currently enjoyed by visually impaired persons in the United States, through an appropriate international legal framework would be consistent with the history of U.S. policy in this area and could move the proposal forward and improve the lives of millions of blind, visually impaired and other reading disabled persons throughout the world. And thus enrich our lives too.

————-
For important background on this, see also: http://www.keionline.org/blogs/2009/01/28/sccr_norm-setting-lne/