Interview with David Hammerstein regarding negotiations on WIPO treaty for persons who are blind or have other disabilities

David Hammerstein is a former Member of the European Parliament from Spain. He now works for the Trans-Atlantic Consumer Dialogue (TACD). Among other things, he is an advocate for a new WIPO copyright treaty for persons who are blind or have other disabilities. The following is an interview with David, carried out from March 3 to March 6 by email.

David Hammerstein at SCCR 19
David Hammerstein talking with a European negotiator at WIPO SCCR 19, December 15, 2009.

Question 1. Has the European Union taken a position on the proposal for a WIPO Treaty for the blind?

Answer 1. Yes. The European Union does not support the proposal for a WIPO Treaty for the Blind but instead supports a voluntary joint recommendation. The EU also stresses the utility of stakeholder agreements between rights holders and NGOs that represent visually impaired persons. Over 100 members of the European Parliament have signed a letter in support of the Treaty but Internal Market Commissioner Michel Barnier has responded that voluntary measures and "soft law" are better ways to end the "book famine" suffered by millions of visually impaired persons. It is surprising given that Commissioner Barnier at the same time is a staunch defender of legally binding treaties for copyright enforcement such as ACTA and for other strong legal measures on an EU level for IPR violations. Nevertheless, when it comes to creating an international flexibility of copyright to help one the the most disadvantaged groups of the world, he insists that no legal changes are needed. What Mr. Barnier is doing reflects more idealogical motives that any concrete economic interest. As a result, he is placing in doubt the credibility of our rigid copyright system that can't even respond creatively to a solvable humanitarian cultural crisis.

Question 2. How does the position taken by the European Union compare to the positions taken by the Publishers or the disabilities groups?

Answer 2. The position of the EU is practically the same as that of the publishers and other right-holders. While playing lip-service the needs of disabilities groups, the European Commission´s main concern is not to give in on considering any international legal instrument for an exception and limitation of copyright. It is a matter of principle and not a pragmatic choice for the EC department led by a French Sarkoyist Commissioner. The publishers have lobbied the European Parliament heavily against the treaty, betraying their commitment in this regard with blind persons organizations. The European Commission pats the bind persons NGOs on the back but then follow the publishers' agenda.

Question 3. How does the European Commission respond to the argument that the UN Convention on the rights of disabilities, including in particular Articles 21 and 30, obligates governments to change laws to provide more equal access to copyrighted works?

Answer 3. The EC ignores the UN Convention on the rights of persons with disabilities, which it has signed. They simply and cynically say voluntary measures are more effective with no solid arguments. The Fundamental Rights Commissioner Redding should give her opinion on this.

Question 4. Governments are run by people. Who are the officials in the European Commission that are really driving policy, in your opinion?

Answer 4. Of course they are people! The EC Officials are high level European civil servants with a great degree of political loyalty to their Commissioner and Director General, and an even greater degree of vulnerability to industrial lobbies that are omnipresent in the ambiance of European Commission services. The EC must also respond to the opinions of EU member states that meet periodically in "working groups" to establish the common position of the EU in international institutions such as WIPO. On the Treaty for the Visually Impaired it is mainly the large EU countries that have formulated concrete opinions on this subject. Thus, the culture ministries of France, Spain, Germany and UK, along with the rotating presidency (now Hungary) play the most important role in influencing how European Commission officials drive day to day policy initiatives. EC official often tell you one thing privately and something else entirely publicly.

Question 5. So, you see the European Commission position as being largely driven by member states, rather than by the views, values and preferences of European Commission officials, such as Michel Barnier, the EC Commissioner for Internal Market and Services who recently wrote to Dan Pescod of the European Blind Union, to defend the European Commission decision to back a soft alternative to a treaty at WIPO?

Answer 5. The EC position is driven by EU member states in an opaque, non-transparent intergovernmental process of semi-secret meetings where public opinion often never finds out which country supports, for example, the Treaty for the Visually Impaired, and which countries oppose it. This lack of transparency makes it much easier for industry, in this case publishers and rights-holders, to kidnap the political agenda. It is also very convenient for one country to blame another for being the "hard-liner". What we do know is that France is the most adamant in opposing the Treaty, with Barnier being the French representative in the European Commission. It seems that some countries such as the UK and Scandinavian countries have a much more flexible attitude toward the treaty.

Question 6. Are you aware of any lobbying by the United States government on this treaty? For example, has the United States government coordinated its efforts with the European Union, or meet with European groups representing blind persons? And what is the message regarding the treaty from the United States government?

Answer 6. The US Government is lobbying heavily in Europe against a legally binding treaty. Justin Hughes has been in a number of European countries, including Spain and UK, speaking with blind persons groups about why a voluntary agreement or recommendation is a better solution. He even has spoken with a number of foundations looking for extra financing for the "stakeholders platform" agreement. This is very much in line with the European Commissions stance and actions.

Question 7. Thank you. Is there anything else you would like to say about the negotiation on the WIPO treaty for persons who are blind and have other disabilities?

Answer 7. It is difficult to counter the arguments of the industry-EU-US coalition against the Treaty because they simply present no arguments. Privately they all admit that their opposition is due to ideological reasons, due to the precedent of approving an exception to copyright, than any serious defense of threatened right-holder rights. All they claim lamely and without any proof that if they give in on this issue, others will demand new, more radical exceptions. Really, this unethical coalition remote-controlled by dozens of well paid lobyists has not put forward one solid economic or legal reason to oppose this treaty. In effect, they are just crudely using the world´s blind and visually impaired as human shields against any common sensical change in international copyright law. Sadly, they are giving a vivid example of what WIPO Director General Francis Gurry recently called the "classical copyright world´s sorry luddite resistance instead of enlightened engagement". It is hard to believe they can be so rigid, insensitive and short-sighted. Let´s hope they change course before June´s WIPO special session on this issue.

Copyright reform at WIPO?

"The US Government is lobbying heavily in Europe against a legally binding treaty. Justin Hughes has been in a number of European countries, including Spain and UK, speaking with blind persons groups about why a voluntary agreement or recommendation is a better solution. He even has spoken with a number of foundations looking for extra financing for the "stakeholders platform" agreement."

Justin Hughes lobbying? It is no wonder the WBU has decided to suspend participation in WIPO & EU Stakeholder discussions, pending agreement at WIPO on legal framework. There are just too many behind the scenes dealings that inevitably is hampering honest dialogue and support for a solution for the blind. Similar lobbying efforts continue at WIPO (for example) for such voluntary systems.

After reading how recent Wikileaks cables on how the US with certain Member States maneuvered events at WIPO in 2008, there is little likelihood for constructive talks for any kind of a legally binding framework for the visually impaired, etc.

See Wikileaks cables at http://wikileaks.ch/cable/2008/07/08GENEVA498.html
and
http://wikileaks.ch/cable/2008/07/08GENEVA504.html

Also, is it time for a new Director General at WIPO to step down? Given the accounts in the cables, is DG Gurry also guilty of corruptive behaviour for his hiring politically 'helpful' persons, including the spate of contracts going to lobbyists, especially those of the private sector -rights holders?

If there is to be a reform in Copyright law, then is there even a need for a copyright infrastructure - a stakeholder's platform, etc.

Negotiating a Treaty

US President Abraham Lincoln spoke in his First Inaugural Address (1861) of persons being "... touched, as surely they will be, by the better angels of our nature."

Right now there is no viable market or economic reason for persons in Mr. Hammerstein's Publishing Industry-EU-US coalition to agree to any binding Copyright Exception Treaty. There is no compelling reason for them to approve any Treaty other than by appealing to their 'better angels'.

I personally think a workable Treaty makes sense but do not believe there is any workable Treaty so far tabled at WIPO SCCR. To those who say talk is cheap, I have in fact proposed a 3 paragraph Treaty based on the Copyright Law of Japan which, even if it does not meet all the goals of the disability community, it IS workable and has ample precedent in existing Copyright Law of several nations.

Beyond that, I think there will be no binding Treaty or more favorable consensus resolutions until the Mr. Hammerstein's coalition sees some real tangible downside to NOT approving a Treaty ... Mr. Lincoln's better angels aside.

Ideology cuts both ways

Mr. Hammerstein obviously knows his way around EU politics, and I don’t doubt that his basic view of the commissions resistance to a treaty is based on ideology and subject to heavy lobbying from publishers and other rights-controlling groups. However, just because one side is wrong, the other side is right - there may not be ‘one solid economic or legal reason’ to oppose the treaty, but that doesn’t mean the treaty will actually solve anything, let alone a ‘cultural crisis’.

Let me state a few facts that seem to have been overlooked in the debate:
- The treaty does not ensure that any additional accessible versions of books will be made, above what is already being produced. The production of accessible materials costs money, which is in short supply everywhere.
- The exchange of accessible materials between countries will itself cost money, which may not be forthcoming. Just because you can do something doesn’t mean it will happen. A library serving the blind in one country may have a difficult time justifying the use of scare resources to serve patrons in another country.
- People, including blind people, like to read what is popular in their country, not someone else’s. Just because many countries speak Spanish doesn’t mean that Peruvians are chomping at the bit to read Spain’s bestsellers. In fact, they may resent the fact that resources are used to import books from Spain rather tan produce more in Peru.
- There are technologies available that help blind people read independently, such as scan-and-read devices. These devices aren’t cheap, but they promote independence for the reader, not further dependence on a library for the blind.

Now, my last point I wont label a fact, but just ‘common sense’. If the goal is to enable blind and print-disabled people to have greater access to information, then it makes more sense to provide incentives for publishers to publish in accessible formats in the first place than to create a global copyright-exception that marginalizes the people it purports to help.

To put it bluntly, the treaty’s real outcome will be to keep blind readers in a disability ghetto where they can be ‘served’ by non-profits and NGO’s (who are not accountable for their 'service'). All organizations tend to justify and rationalize their positions in light of their self-interests, and the WBU/EBU/etc. are no exception. Blind people do not have a lot to read due to an economic imbalance. The treaty will only entrench that disparity for years to come.

Bob Martinengo

Bob Martinego's comments

Bob Martingeo's comments are both misleading and offensive. Bob Martinego has been following the treaty discussions for a couple of years, and I am surprised and disappointed at much of what he says. Martinego should know, if he bothered to read any of the comments filed in the earlier Library of Congress inquiry, or followed the debate more generally, that in Spain and in Latin America there is an astonishing disparity if works from country to country. Some countries have tens of thousands of works in accessible formats, some have few thousand, and some have only a few hundred. There are also large disparities for countries with significant populations that read English, French, Arabic or Portuguese, not to mention the benefits of sharing for persons who read more than one language, or who live countries where their mother language is not used.

New reading devices are useful, used and improving, but they do not eliminate the need for or benefits of making works available in accessible formats (even where the reading devices are available).

People who are blind are unambiguously better off if the can share copies of accessible works across borders.

The WBU proposal for a treaty does provide an important incentive for publishers, and Bob Martingeo knows this. Under the WBU proposal, countries could include an exception for commercial entities to make accessible works, in cases where there is no accessible version available from a publisher, and where they pay royalties to copyright holders. This is designed to both provide an incentive for publishers to make their own works accessible, and to provide the opportunity for the for-profit sector to enter the market, and meet needs.

James Love, Director, KEI

Follow-up

I must correct Mr. Love on one point - I have not been 'following' this issue, I have been working in this field for 14 years - that is, actually producing accessible books, not just blogging about it. Early on I realized a copyright exception was not going to level the playing field for disabled readers. The Chafee amendment has failed to do so in the US, and a treaty will fail to do so for the rest of the world. Since it will probably never get through WIPO, what's plan B?
Bob

The Chafee Amendment,etc

Tell us a little about your work producing accessible books, and why you think the Chafee amendment was a bad thing.

And, if you aren't following the WIPO negotiation, what makes you think "it will probably never get through WIPO." Support for a treaty is fairly extensive globally, and growing.

James Love, Director, KEI

Not a follower

My specialty is textbooks, where its been obvious for some time that Chafee 'authorized entities' can't keep up with the demand (I used to work for one). The only hope is for publishers to take over, which they are (slowly but surely) starting to do.

The treaty wont happen, not mainly due to the opposition, but because the supporters will fall apart, bickering over the details (seems like that has already started). When I said I wasnt following the issue, its because I am out in front of it. Read these posts again in about five years and I think you will be surprised.

Bob

For profit suppliers

Bob, Do you think you have much insight into what it takes to get a treaty through WIPO? From what I can see, the groups pushing for the treaty are working together pretty well, as these things go. It is a challenge to get a decent treaty through WIPO. But it looks possible to me. In fact, I don't see how the publishers can stop it, as long as the disabilities group continue to ask for it. That is probably why so much effort is being put into pressuring the disabilities groups to abandon the project.

Some of your comments seem to contradict each other. If the non-profit entities "can't keep up with the demand," and publishers are in fact entering the market, then why would an exception for non-profit entities create a problem for the for profit companies?

Interestingly enough, while you rail against the groups asking for the treaty, and make much of the importance of market solutions, it is the publishers who are trying to limit the exception to the non-profit sector. Both the US and the EU proposals, which essentially reflect the views of the publisher lobby, would limit cross border exceptions to non-profit entities. The WBU wants the possibility of a for profit exception, when copyright owners don't themselves provide an accessible version of the work. If you believe in the market, you should be applauding the WBU proposal, and criticizing the publisher/US/EU position, which is to limit the exception to non-profit actors. Instead you mount a bitter attack against the WBU proposal for insisting on a non-profit delivery system.

James Love, Director, KEI

Too many forks in the road

This discussion has forked too many times to be of much further use, but here is one last point. You wrote:

If the non-profit entities "can't keep up with the demand," and publishers are in fact entering the market, then why would an exception for non-profit entities create a problem for the for profit companies?

Here is a small example. Steve Martin published an autobiography called Born Standing Up, and he read the unabridged audiobook himself. Under the Chafee amendment, the National Library Service was able to record a new version, using a different narrator. You may wonder why they would do this, since the unabridged audio was already available. The obvious answer is because this was a popular book they wanted in their collection, and because they could.

Steven Martin's Book, Born Standing Up

A few data points may or may not be representative. I doubt that blind people having an audio version of Steven Martin's book will have any impact at all on his decision to record. Here are a few additional things to consider. Martin's own audio book was published after the hardcover edition appeared, not at the same time. And, when it was published, it had a list price of twice the price of the paperback edition. Today you can spend $.86 for a second hand copy of the paper version, or $17.95 to $21.86 for discounted price of audio versions.

Steve Martin's Book Born Standing Up was published in hardcover in 2007. The audio version was published in 2008.

Current prices for the electronic and paper versions:

Kindle Edition $11.99, text-to-speech disabled
Paperback $15.00 list. $10.20 on Amazon.com new
Audio CD unabridged $29.95 list. $21.86 discounted on Amazon.Com
Audible Audiobook edition $23.93 list. $17.95 discounted
Used paperback, from $.86.

James Love, Director, KEI

Same time, same price?

You implying the NLS version came out the same day as the book? Dont think so.

Dates of publication

If you have the dates of the publications, it would be interesting. In general, I don't think making an audio recording available later, at a higher price, is the solution for all users. And, some types of books are certainly more useful when working from a digital text that can be searched, bookmarked, and marked up and tagged. Also, with regard to Steve Martin recording his own book, I can see how a reader like myself, who is not blind, would see that as nice feature. I also note that when I observe my blind friends reading books using synthetic speech, they read at an amazing speed, with voices that seem very high pitched and distorted to me. So I assume that for some works, the dramatic performance skills may be more important than is the case for other works. Lots of books will never be created as audio books read by authors or professional actors. Certainly none of the books that I have contributed to have been published this way.

James Love, Director, KEI

reverse logic

Ok, lets assume that the treaty does go through and the export/import of accessible works becomes commonplace. Will this end the book famine? If my instincts said yes, then I would support the treaty. But every experience I have had in the alternate media field and every observation I have made of the publishing industry leads me to believe that the 'end-users', that is, the folks with disabilities that we are trying to help, would not be significantly better off, and that the fall-out from pushing through a treaty against the wishes of the industry whose products we want to gain access to would create its own backlash. So far nothing I have heard from any pro-treaty source has shaken that view.

Will any single act end the book famine?

I can't think of any single thing that would end the book famine. I doubt you can either. That is hardly an excuse to block things that will improve things. Allowing cross border sharing of accessible copies of works that are lawfully made has to be a positive, and not a negative.

James Love, Director, KEI

So the Former EU MP Mr.

So the Former EU MP Mr. Hammerstein says that significant resources are being marshaled toward preventing any binding Treaty such as the Brazil WIPO SCCR 18_5. Maybe I can suggest how to divert some of those resources. Aside from the Copyright Law of countries that I have mentioned in previous comments, consider the Copyright Law of the People's Republic of China (begin):

Article 2:

The copyright enjoyed by foreigners or stateless persons in any of their works under an agreement concluded between China and the country to which they belong or in which they have their habitual residences, or under an international treaty to which both countries are parties, shall be protected by this Law.

Article 22 (Exceptions and Limitations)

In the following cases, a work may be used without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner in accordance with this Law are not prejudiced:

(12) transliteration of a published work into braille for publication.

Articles 47 & 48 (which describe prohibited acts)

47 (6) exploiting a work for exhibition or film-making or in a manner analogous to film-making, or for adaptation, translation, annotation, or for other purposes, without permission of the copyright owner, except where otherwise provided for in this Law;

48 (1) reproducing, distributing, performing, presenting, broadcasting, compiling a work or making it available to the public through information network, without permission of the copyright owner, except where otherwise provided for in this Law; (end)

So – if one were so inclined – one could say that as long as the transliteration of a copyrighted material was made into Braille, and as long as the work was copyrighted in a country with which PR China has bi- or multi-lateral copyright agreements, such a transliteration into Braille can be made and distributed as it IS otherwise provided for in this Law.

It doesn't say in this Copyright Law that the person or organization who makes such a transliteration into Braille or the end recipient has to be a citizen of China. Could it be that under the Copyright Law of The People's Republic of China, (adopted at the 13th Meeting of the Standing Committee of the Eleventh National People’s Congress on February 26, 2010) I can make a Braille rendition of a work copyrighted in the USA, UK, or France or countries with such bi- and/or multi-lateral agreements with China and then send it to someone in Thailand, or Brazil, or Burkina Faso, especially if such a work is already available in the Nation Library of the Braille reading recipient's country?

Who knows? ... but as they say might say in the movies: See You In Court.