In their own words: why they oppose the treaty to facilitate access and sharing of works for people with reading disabilities

Now that we know who are the people opposed to an international treaty to facilitate access and sharing of accessible formats of works for blind people and people with reading disabilities, let’s read what their arguments against the treaty are.

I was able to highlight 10 main arguments and you can check in their own words below if you do not believe me:

Number 1, a treaty to facilitate access for reading disabled person is bad for copyright in general: it could “dismantle” the system. (Did the Chafee amendment dismantle US copyright, if so I did not notice)?) It is also a waste of resources, especially of WIPO’s resources, which is bad because WIPO has been so helpful in “helping developing countries” during the last two decades. Yes, this is a quote.

A third “argument” is that it is not needed, it is not necessary, things are working great for people with reading disabilities. Let’s not “re-invent the wheel”. I guess less than 5% of what is published is good enough?

The 4th argument (and there’s almost consensus on that one) is that the best for access for people with reading disabilities is that publishers help on a voluntary basis. Followed by statements about mission and commitments. Yes, it is working great since people with reading disabilities get less than 5% and the publishers recently decided to turn off text to speech on Kindle 2 because it might one day compete with audio books!

Another almost consensual argument is that there are SO many issues other than copyright that are problematic, so why focus on copyright and exceptions to copyright? The argument was made by the US delegation at WIPO and since then it has become a mantra for the opponent of the treaty. So why talk about copyright? Well, I guess because this is being discussed at the World Intellectual Property Organization and the request for comments comes from the US Copyright Office and the US PTO among other reasons. Like the need to get access to information and knowledge without waiting for month or forever for permission to get a book in an accessible format? And why not a book made in another country for people with reading disabilities?

I found it interesting that only one opponent of the treaty (JG) mentions the import and export issue (and only to say that it is not really “not” possible according to the law!). All the others (MPAA, RIAA, NS etc) are in total denial that the main point of the treaty is to make the import and export of works in accessible format possible…legal with certainty. It is really the main reason for people with reading disabilities to go for an international exception. To increase their limited collection of available titles, to not waste resources to make books in accessible formats in each country it is is wanted, an international explicit and certain exception is badly needed.

Argument #6 is rarely expressed but is interesting: there is fear of “infringement and fear of loss of economic incentive for creation” from the publishers. Of course there is NO evidence that libraries and organization such as the Recording for the Blind and Dyslexic or Bookshare even tolerate anything close to a use without the right qualification (try, you’ll find out). And when it comes to “lack of incentives for creation” I am wondering how many US authors stopped writing when the Chafee amendments passed. I really would like to see evidence that writers stopped writing and publishers stopped making money. However, we have plenty of evidence that people with print disabilities do not have enough access even in the US where we have an exception!

Argument # 7, the most commonly heard during “casual” talk at WIPO is that a treaty is “premature and even counter productive”. First, I was told and it is in the comments too, let’s try other ways to facilitate access. I am wondering what the people (probably now retired) who worked on the WIPO UNESCO meeting in the 80s would think about that. They already recommended a treaty as the solution to production and dissemination of accessible formats in 1983 and 1985. So 25 years is premature …or is it overdue? You pick, it depends if you are sighted or not I guess.

Then you have a split among the opponents of the treaty: some say it is consistent, so consistent with existing international treaties…that it is not necessary. Others write that it is so inconsistent that it would create “ an irreconcilable conflict”. Either way, it is too hard, too complicated. I guess the WCT and WPPT were simple?

Finally, and it is the best: Argument #10 the treaty is a “giant step”, it is a slippery slope…or is it too slow and complicated and would not do anything? You read their words and you decide.

In their own words (JS= Jule Sigall for Microsoft, SM= Steven J. Metalitz for Association of American Publishers (AAP), Independent Film and Television Alliance (IFTA) Motion Picture Association of America (MPAA) National Music Publishers’ Association (NMPA) Recording Industry Association of America (RIAA ), KK= Keith Kupferschmid for the Software & Information Industry Association (SIIA), JG= Jane C. Ginsburg and June M. Besek, for Columbia University; CC = Content Control groups but no name: Advanced Access Content Protection, Licensing Administrator, LLC, Content Management License Administrator, LLC, Digital Transmission License Administrator, LLC, DVD Copy Control Association 4C Entity, LLC, and NPR= National Public Radio: Joyce Slocum, Michael Riksen, Michael Starling, Julie M. Kearney, Gregory A. Lewis, FA=Fritz Attaway for MPAA.

Argument #1 A treaty? Wrong strategy to facilitate access… and bad for copyright

• -The proposed Treaty would reverse the basic policy established during 125 years of norm setting (FA)
• -But among the strategies least likely to advance the goal of increased access by the blind and visually impaired is the path down which the draft treaty points: to begin to dismantle the existing global treaty structure of copyright law, through the adoption of an international instrument at odds with existing, longstanding and well-settled norms.(SM)
• -While providing little or no real assistance to the intended beneficiaries, the proposed Treaty is vastly overbroad, is imprecise and inconsistent, and dramatically conflicts with both the policy and substance of existing international copyright norms.(FA)
• -the text of the draft Treaty proposed last May is vastly overbroad, imprecise and contradictory, and in conflict with the letter and spirit of existing international copyright instruments. (FA) [yes, again]

Argument #2 A treaty? Wrong strategy and a waste of resource for WIPO (so good at helping developing countries though):

• -No one, least of all the blind and visually impaired, would be well served if WIPO’s resources were instead squandered on a divisive and ultimately unproductive exercise in imposing new global norms, fundamentally inconsistent with those that have marked the development of copyright law for more than a century. (SM)
• Thus, even if member States succeeded in agreeing on the details of a supranational obligation to provide exceptions and limitations in favor of the visually impaired, past experience does not leave us optimistic that the result will in fact serve its intended beneficiaries. We do not mean to suggest, however, that WIPO cannot play an important role in ensuring the implementation of fair and reasonable exceptions for the blind and visually impaired in countries around the world. Over the past two decades WIPO has been instrumental in helping developing countries to formulate their laws. (JG)

Argument #3: It’s working great for the blind right now, why “re invent the wheel”:

• -The existing legal framework is 1) flexible enough 2) proven to be working . The three-step test for exceptions and limitations to copyright protection, first adopted in the Berne Convention with respect to the reproduction right, and since adapted and extended to other rights in the TRIPS Agreement and the WIPO Internet treaties, is fully capable of accommodating these adjustments. More precisely, there has been no demonstration that this authorization for the recognition of exceptions and limitations is too limited or too rigid to advance this goal.(SM)
• -With each passing day, via the Internet and other digital technologies, the blind and visually impaired are being provided with more options, more alternatives and more opportunities.(KK)
• -The greater flexibility provided by the time-tested approach of defining the scope of permissible exceptions better serves the long-term interests both of copyright owners and of the blind or visually impaired.(SM)
• -Perhaps most disturbing about this proposed treaty-making effort is that there has been no showing that the three-part test is in any way inadequate to address the current access problems for the blind and visually impaired.6 Why re-invent the wheel, when we have a perfectly good wheel to use that is adequate to the task at hand. (KK)
• -The comments from other parties filed in response to the first notice confirm that a binding international instrument would do little, if anything, to solve the practical problems facing the visually impaired with respect to gaining access to copyrighted works. (FA)
• -The history of the software and digital content industries has shown that the answer to most technology-based problems lies principally in the stakeholders and the marketplace developing technical and business solutions. The software and digital content industry has worked with the blind community to reach consensus on ways to address numerous accessibility problems in the past (KK)
• -There has been no showing that existing international copyright norms fail to provide adequate flexibilities to allow copyright limitations and exceptions necessary to make works accessible to the visually impaired and others with disabilities. (FA)
• -The technological protection measures licensed by the undersigned groups have worked, individually and in combination, to allow hundreds of millions of consumers – including consumers with various disabilities – to enjoy audiovisual and other copyrighted content in new digital forms and over home networks.(CC)
• -No evidence was offered that the flexibilities in the Berne Convention for the Protection of Literary and Artistic Works and other international copyright instruments are insufficient to permit member states to provide effective measures to facilitate access for the visually impaired geared to the particular needs of their citizens. (FA)
• -For public radio, service to unserved and underserved audiences has long been central to its mission. (NPR)
• – MPAA member companies have been actively involved for many years in providing voluntary solutions for the visually impaired, such as producing audio descriptions on motion pictures distributed theatrically and on DVD […] A descriptive video version of the Disney movie, “Up,” is currently available at the iTunes Store for blind patrons (FA)

Argument #4 The best for the people with print disabilities, is that it is voluntarily done by the publishers and other content owners:

• -Microsoft has taken voluntary steps for nearly twenty years to provide books in accessible formats (JS).
• -As a result, Microsoft has a keen interest in making sure that the national and international copyright systems remain robust and effective in the digital age, for authors, publishers, distributors and users alike. Any solution to accessibility challenges must strike the right balance between removing barriers to making works accessible to people who are blind and others with disabilities in the most efficient way and preserving the important copyright incentives to the creation of books and other works. (JS)
• -While Microsoft has not yet formed a position on the proposal or its specific provisions, we offer these observations about the underlying copyright issues from our experience in making copyrighted works accessible to those with disabilities. (JS)
• -[examples of software and films} That activity is occurring without any explicit exemption in U.S. copyright law. (JS)
• -The experience from other sectors like the software industry also highlights the concept that the best solutions to these problems are ones that rely primarily on the voluntary cooperation and collaboration of all interested parties, not specific mandates from the law.(JS)
• -Another important aspect of voluntary mechanisms is that they help overcome impediments posed by national laws and borders. Where book publishers make available not only accessible versions of their works, but also copyright licenses that allow distribution by third parties in multiple countries, it becomes much easier for organizations like Reading for the Blind & Dyslexic and Bookshare to make the versions available, without the need to consult individual country laws to determine whether distribution can be made.(JS)
• -Alternative approaches, such as the WIPO Stakeholders’ Platform,may strike a better balance between the competing objectives of protecting copyrighted works and facilitating access through exceptions and limitations (NPR)
• -The bilateral approach of mutual cooperation working within the marketplace is the best way to develop the technological solutions to the specific issues related to facilitating access to copyrighted works for the blind and visually impaired.(KK)
• -WIPO is already doing much to address these issues, notably through the WIPO Stakeholders’ Platform, an initiative that the signatory organizations strongly support.(SM)
• -[WIPO’s role is to do such as] encouraging harmonization of national laws around “best practices” where appropriate. (SM)
• But:
• -The treaty proposed by the World Blind Union follows the same basic approach embodied in the Chafee Amendment and the Section 110 exemptions by promoting access to copyright works specifically for the print and hearing impaired but otherwise promising to protect the work from further exploitation (NPR)

Argument #5 There are so many other issues, it is not really about copyright:

• -[..]copyright law exceptions for people who are blind are not the only issue that affects how accessible books can be made more readily available….some of the other legal and non-legal issues that need to be addressed to improve the situation, such as lack of adequate funding and a need for better coordination among trusted organizations, educational institutions and publishers, to name a few (JS)
• -As the USG statement points out, a number of “complex issues of law, technology, business, and human and financial resources” bear directly upon the accessibility question.(SM)
• -It is important to note that the underlying cause of the issues purported to be addressed by the Treaty typically have nothing to do with copyright. No international instrument mandating copyright limitations and exceptions will meaningfully contribute to increased access, because the assumption that existing copyright law is an impediment to access by the visually impaired or other disabled people is wholly inaccurate[…] Measures that will truly facilitate access include greater funding for entities that distribute products accessible to the visually impaired, technological development and greater coordination among stakeholders. The focusing of attention and resources on an international instrument, at the expense of practical measures that would have a real world impact, stands to harm the interests of the visually impaired and other disabled people (FA)
• -there are many considerations distinct from copyright protection that have a more substantial and direct effect on whether goods and services are made available in a way that is accessible to the blind and visually impaired. Focusing exclusively on copyright protection as a barrier to progress in this area is a mistake. And directing that focus on an international treaty is particularly unwise. (KK)
• -The circumstances that impede access to copyrighted works by the visually impaired and others with disabilities are many and varied, but in most instances have nothing to do with copyright protection. (FA)

Argument #6 Infringement and loss of economic incentive for creation

• -The reticence of authors’ and publishers’ to license this activity is caused in part by fears that it may lead to infringement or otherwise undermine the economic incentive for the creation and distribution of books (JS)
• -to the extent that the proposed Treaty would mandate gaping fissures in the current level of copyright protections with potentially devastating impact on incentives to create new works, society as a whole would be left with fewer works to access. (FA)

Argument #7 A treaty? It’s premature, first, let’s try everything else (again and again)…

• -First, book publishers should voluntarily make information available to the public about which of their titles are offered in accessible formats, and how intermediaries might contact them to obtain licenses to distribute those formats or additional accessible formats…Where it becomes apparent that publishers are unable or unwilling to make accessible versions available, the case for and contours of an appropriate copyright exception that is effective around the world becomes more clear and easily understood. (JS)
• -the exception that would be mandated by the draft treaty has no real precedent in national law. Such a detailed mandate, drawn up without the benefit of practical experience in national legislation, is more likely to prove unrealistic or inflexible, and to need revision or recasting in a short period of time. Prudence counsels against including in an international instrument a mandatory directive to sail into these uncharted waters. (SM)
• -It would be premature and counter-productive to prescribe in treaty form the very technologies and market that is facilitating, for the first time in human history, the very accessibility long sought by blind and visually impaired individuals. There is a real danger that these cooperative efforts could be adversely affected if WIPO or any government were to step in and attempt to create and implement copyright-specific mandates or exceptions that bind the hands of the stakeholders, especially those being proposed in the draft Treaty (KK)

Argument #8 The treaty is not consistent

• -the draft treaty takes the opposite approach, requiring signatories to enact extremely broad exceptions to copyright protection (such as those set forth in Article 4(a) of the proposal), which cannot possibly be considered consistent with the three-step test.(SM)
• -the draft treaty recites (in Article 3(a)) that everything in it is consistent with the obligations of states under the Berne Convention, as well as the other copyright and neighboring rights treaties administered by WIPO. But the recitation rings false. To require a contracting party to adopt a sweeping exception, such as that outlined in Article 4(a), that would certainly fail to pass muster as even a permissible exception under Article 9(2) of the Berne Convention, Article 13 of TRIPS, Article 10 of the WIPO Copyright Treaty (WCT), or Article 16 of the WIPO Performances and Phonograms Treaty (WPPT), is to create an irreconcilable conflict. (SM)

Argument #9 The treaty is not consistent and/or not necessary

• -the permissive approach to exceptions in general – and the well-established three-step test in particular – has proven successful in bridging the gap between civil and common law legal systems. Consistent implementation of mandatory treaty provisions in the two types of legal systems, as well as in particular national variations upon them, has often been more problematic. The same could be expected in this case.(SM)
• -Section 6 of this Proposal would require that individuals to be benefited by the new Treaty must be permitted “when necessary the right to circumvent the technological protection measure [applied to a work] so as to render the work accessible.” Such a broad new exemption obligation could fundamentally undermine the system of legal protection for technological protection measures that was created, and has been supported, by the anticircumvention provisions of the 1996 WIPO
• -Copyright Treaty and WIPO Performances and Phonograms Treaty and the implementations of those treaties in domestic law, including, as noted above, in the anticircumvention provisions of the U.S. Digital Millennium Copyright Act (CC)
• -If the exceptions mandated by a new treaty were incompatible with the three-step test, then Berne art. 20 (incorporated in TRIPs via art 9(1)) would prohibit member States from enacting the treaty. Article 20 bars Berne member States from agreeing to provide a level of protection that is lower than that assured by the Convention’s substantive minimum protections.
• -On the other hand, if the proposed exceptions are consistent with the minimum protections provided in Berne, then member States may implement them as a matter of domestic law, and there is no need for an international treaty. In sum, either the proposed treaty is ultra vires or it is unnecessary.(JG)
• -The Treaty therefore allows a degree of flexibility, but only in the direction of providing greater “protections for the visually impaired” (i.e. exceptions), even where more narrow exceptions would suffice.(FA)
• -With respect to importation, in fact, member States may, consistent with Berne-TRIPs, provide for the importation of copies of works in appropriate accessible formats. The Berne-TRIPs framework accommodates not only the production within a member State of accessible formats, but also the importation by one member State of accessible formats produced in another. As a result, an importation clause such as that proposed in art. 8 of the draft treaty may well be Berne-TRIPs-compatible, and for that very reason the clause could be adopted into national law under the current regime without the necessity for (and attendant disadvantages of) a new multilateral instrument.(JG)
• -The TRIPs Agreement does not impose a higher level of protection in this regard. Importation controls under TRIPs arts. 44, 50 and 51 seem primarily to concern the lawfulness of the copy in the country of importation. Unlawful manufacture in the country of production is relevant to the classification of the copy as “pirated,” but the copy must nonetheless also be unlawfully made under the law of the country of importation, at least with respect to any TRIPs requirements that local customs officials block the importation. See Ricketson & Ginsburg, supra, paras. 11.77-11.80. (JG)
• -Our analysis indicates that, while such a treaty (or parts of it) may be permissible, it is not necessary. Berne-TRIPs member States may currently, under their domestic law, implement all of the proposed treaty’s measures which are compatible with the Berne-TRIPs framework for national exceptions and limitations.(JG)
• -a special treaty would not violate Berne art. 20, but would be unnecessary because the requisite limitations could be introduced into domestic law.(JG)

Argument #10 The treaty is a giant step…slippery slope…or it is too slow and complicated

• -This brings us to the second unsound premise of the draft treaty: that even if an exception along the lines of Article 4(a) were consistent with the three-step test, this would not be enough to address the problem. Instead, the draft treaty goes one giant step farther, by mandating the adoption of such an exception in national laws. By requiring the recognition of a specific, detailed exception to copyright protection, the draft treaty would break the mold of every previous treaty instrument that forms part of the long-standing global framework of copyright norms.(SM)
• -The Treaty would break new ground at WIPO by mandating one or more specific exceptions and limitations to copyright protection.(KK)
• -the Treaty does not specify who may engage in the authorized exploitation of works. By contrast, the Chafee Amendment authorizes the reproduction and distribution of certain literary works by an “authorized entity,” which is defined to mean a nonprofit organization or governmental agency that has a primary purpose to provide related services to blind or other persons with disabilities.(NPR)
• -Viewed in context, the draft treaty appears to many as the not-so-thin edge of a wedge to be driven into the longstanding structure of global copyright norms. It advocates a U-turn in the approach to global copyright norms that would almost certainly not be restricted to the issue of access for the visually impaired, or even for the disabled community generally. Adoption of this proposal would be used to justify its radical approach — mandating in national law exceptions and limitations that reach far beyond what would be even permissible under global norms today — in many other fields of copyright law. (SM)
• -the definition of “Disabilities Covered” in Article 15 applies to all disabilities without limitation. This language throws the door open to benefiting not just those with disabilities, but rather those whose disabilities are defined according to whether they are in some way impeded from accessing copyright works – including where the impediment may be from an external cause such as poverty or lack of access to technology.(FA)
• -The draft treaty would turn this long-standing principle on its head, demanding that signatories limit copyright protection to an extent not even permissible under the existing treaties, and inviting them (in Article 2(d)) to go even further, to include “more extensive protections for the visually impaired and reading disabled.” (SM)
• -the impact of the treaty proposal would extend far beyond facilitating the access of blind and visually impaired people to the subset of works for which their particular condition presents an obstacle.(SM)
• -Article 15(b) (signatories obliged to apply treaty to persons with “any other disability” to which an accessible format could be applied); (SM)
• -it would be unwise to attempt to craft a new and potentially complicated international framework merely to address concerns that are likely to be addressed more rapidly and effectively by the marketplace than they could be by such a Treaty. The WIPO treaty-making process is inherently ill-equipped to effectively address many of issues that are certain to be raised. (KK)
• -we are supportive of WIPO’s efforts being undertaken through its Stakeholders’ Platform. It would not benefit the copyright or blind and visually impaired communities to divert WIPO’s limited resources from these efforts in order to engage in a treaty-making exercise that would be conflict-ridden, time consuming, and lengthy and (at the end of the process) is unlikely to improve greatly (or at all) the existing situation. (KK)