Towards Global Access for the Print Disabled

A Policy Update from an engineer, Jim Fruchterman of Benetech

June 8, 2010

The international copyright negotiations in Geneva around a proposed Treaty for the Visually Impaired (“TVI”) have been steadily heating up. Counterproposals have been made, governments have been engaging with rights holders, consumers and NGOs (or not!) and there’s a general feeling something is going to happen. I’m heading to Geneva later this month for the next major meeting at the World Intellectual Property Organization (“WIPO”), to hear the latest and make my three-minute oration as an accredited NGO representative (first time for me!).

My recommendation to the advocacy community is to continue to pursue a “yes-and” approach, as we have so far with the TVI and the Stakeholders’ Platform. However, my suggestion is to pursue the U.S. Joint Recommendation and the TVI, but drop the Stakeholders’ Platform.

This update explains my reasoning. Remember, IANAL (I am not a lawyer). So, your lawyer’s opinion may vary, and is likely to be better informed on the legal aspects.

The Goal

The goal is pretty clear: insuring that every person on the planet with a serious print disability has access to the books and other printed material that they need to get an education, make a living and be included in society. It is abundantly clear that the great majority of people in the world who cannot pick up a book and read it effectively are at a terrific disadvantage in society. I’m measuring this entire effort by how much it does to change this sorry state of affairs, in both the short and long term.

The Proposals

A. The Treaty for the Visually Impaired (TVI). The draft can be downloaded from WIPO. The name is a misnomer: it’s designed for all people with print disabilities. The treaty does a lot of things, but let me highlight a few:
• A global norm that there be copyright exceptions that allow for the making of accessible versions of copyrighted works for free on a nonprofit basis by a broad range of people or organizations, without having to get permission from the rightsholders.
• Allowances for import and export of such material between countries by people or organizations.
• A broad functional definition of disability (although awkwardly drafted, as someone who participated in the drafting) including the visually impaired as well as those who “need an accessible format … in order to access a copyright work to substantially the same degree as a person without a disability.”
• A broad definition of formats, including Braille, audio, large print, digital text, and video with audio description.

B. The U.S. Joint Recommendation Proposal (US-JR). This draft can be downloaded from the DAISY Consortium. This was recently presented by the U.S. Government delegation, as a next step possibility. It is narrower than the Treaty, and is not binding as a treaty would be (some call it “soft law” compared to the “hard law” of a treaty). Its key points are:
• A recommendation that import and export be permitted under national law in all WIPO-member countries between Trusted Intermediaries (“TIs”), a narrow class of nonprofits and government agencies with a primary mission to serve the print disabled, with the option of charging TIs for the privilege to do so.
• A functional definition of disability that I think is pretty close to the TVI (it is even clearer).
• A definition of formats that includes Braille, audio and digital text, but excludes large print and video.
• Strong hints that import/export is already permitted by U.S. law (this is a wildcard issue right now).

C. The African Union Proposed Treaty (“AUPT”). This has just been released with a rough translation (into English from the original French). I would class this as TVI (nearly identical) plus additional provisions creating a similar exception for schools, libraries and archives. For the purposes of my discussion, I consider it equal to the TVI in carrying out our objectives. Its greater scope creates additional challenges to get it passed.

D. The European Union rumored Joint Recommendation draft (“EU-JR”). While it has not yet been made available, I would assume it is US-JR minus compared to the AUPT’s TVI plus! The signals from a few European countries on its likely content have not been encouraging.

E. The WIPO Stakeholder’s Platform (WIPO-SP). This is an effort to create a voluntary project between the publishers and the Trusted Intermediaries. Right now, it’s not in great shape:
• No global exception norm, but voluntary agreement by rightsholders (that’s today’s status quo), with model agreements that are terrible from the nonprofit/library side.
• More restrictive disability definitions, using a medical model, excluding learning and cognitive disabilities in general.
• A definition of formats that includes Braille, audio and digital text as well as large print. Excludes video.
• In addition, a number of negative, overly-restrictive factors that would limit accessibility for users: DRM requirements, indemnities of the TIs to the publishers (which could bankrupt a library), shelf-clearing requirements to remove books from a library in the case of even minor breaches, fees to the publishers for access and possibly preparation work, restrictions on creating a work if a special format version is available somewhere, intrusive record keeping that probably violates U.S. and European privacy laws, and so on.
• A proposed three-year pilot with 100 titles. This seems unreasonably modest, when Bookshare alone already has much more favorable voluntary agreements covering 20,000 English language titles and 1,000 Spanish language titles with many of the major U.S. trade publishers (and some in India and the UK), and over 1,000 international members in 35 countries today. Plus, many countries are already sharing cross-border on a larger scale, albeit mainly regionally (like Scandinavian countries sharing with each other).

My Recommendations

My recommendations to advocates are:
1. Support the TVI or AUPT.
2. Be open to negotiating on the US-JR if it’s stipulated that it is a step on the road to a treaty (a “yes-and” strategy).
3. Until the EU-JR is released, wait and see.
4. Oppose the Stakeholders’ Platform unless it is changed to be as good or better than today’s status quo practices, which I think is unlikely.

Reasons for Each Recommendation

The Treaties

The TVI or the AUPT are treaties that would do a great job towards meeting the goal I stated above. They would be binding international law if negotiated and adopted, stating that all countries should have an exception for the print disabled. They would permit import and export of accessible materials, and are crafted to avoid a significant financial impact on publishers. They are as good as what we have in the United States today, with some parts that are even better.

The U.S. Joint Recommendation

I think that advocates should consider supporting this, as long as it is explicit that it is a first step to a treaty. The U.S. has been very negative on a treaty in the past: their public statements have been softening lately. I think that over the last six months, the US Government has come out in favor of accessibility, splitting with some of its typical EU/rich country partners.

What don’t I have a problem with at this point?

• Disability definition: it’s as good as the TVI (maybe clearer) and better/clearer than U.S. law today.
• It has the power of the USG behind it: an important norm setting for both international and domestic activities.
• The format definition as “being exclusively for use by persons with print disabilities, such exclusivity being inherent to the format, through technical means, or through exclusive distribution by Trusted Intermediaries” is a terrific clarification of the issue: much better than today’s ambiguous U.S. law.

What would I work on?

• Clarification that U.S. law permits import/export today. That could start the ball rolling with access right away. But, the USG has been pretty coy about this: they represent that import/export is legal today as an argument against the TVI, but won’t actually go on record (or at least, the Copyright Office won’t). This isn’t solid enough to count on, but if secured could be a major short-term win. Support for the US-JR only makes sense if we have reliable confidence that exporting and importing are legal today (not, try it and see if you get sued).
• Clarification on Trusted Intermediaries. I’m supportive of this as a concept, as long as it doesn’t go beyond U.S. law today: there is no current requirement for registration or being on a list. Many developing countries don’t have a national group that serves in similar ways to the groups in wealthier countries. We should be able to work with the blind school in the capital, an NGO that has a major focus on people with disabilities, disability offices of universities or regular libraries, and the like. They all meet the definition of TI as a primary purpose of the agency or NGO.

• A WIPO registry could be a real barrier to the goal of access for people around the globe, unless it is implemented with huge sensitivity to the reality of developing nations.
• The nationwide network concept is ambiguous. Bookshare serves over 10,000 schools and nonprofits in the U.S. today: they follow our rules but they are not each TIs, nor should they be. NGOs and agencies (like clinics, hospitals, regular libraries and schools) should be able to cooperate with a Trusted Intermediary to deliver materials directly to the people with qualifying print disabilities.

• Large print: the U.S. exception currently permits large print for educational purposes. We should give more flexibility to include large print.
• Clarification that to export into a developing country, a disability copyright exception is not required if there is some other exception or common practice that would permit such activity (fair use/trading, interlibrary loan, assistance to the disabled/poor, etc.).
• It has a statement encouraging national copyright exceptions for people with print disabilities as a Good Thing™.

The WIPO Stakeholders’ Platform

Forget the WIPO-SP, unless it gets modified to be at least as good as the status quo. Right now, it’s a major step backward: filled with poison pills. It confers no benefits compared to how things operate today: individual publishers have been willing to be far more reasonable than the draft agreements. We certainly do not want it to be used as a base for future treaties or other negotiations.

Conclusion

I recommend a “yes-and” approach: the TVI and the US-JR. The domestic disability policy angle is especially important to the U.S. disability community; we have the political leadership advocating almost all of our wish-list for the U.S. copyright law:
• Clarifying that copyright exceptions (here and globally) should include a functional definition of print disability. We’ve been fighting this exact issue in the U.S. for years: some publishers want to exclude or constrain people with real and significant print-related learning disabilities.
• Clarifying the formats include digital formats that are distributed through TIs (or with some DRM) as being what fits under a copyright exception. This means we can clearly distribute formats that are usable on standard, cheap, mass-market platforms.
• Stating the imports and exports should work to the benefit of both U.S. residents with disabilities and globally.

The U.S. is an essential player in any global copyright action. The US WIPO delegation has come over to our policies almost completely. Contrast that with the chains of the Stakeholders’ Platform proposal. We cannot abandon our quest to get national copyright norms changed; the US-JR avoids this and therefore is only half the equation. But, if we were comfortable with a “yes-and” approach before (with the TVI and WIPO-SP), TVI plus US-JR is even better.

Jim Fruchterman
CEO, Benetech. Bookshare founder.