Yesterday I looked at WHO on earth would be opposed to a treaty to
facilitate access and sharing of works for people with reading
disabilities (Blog at: http://keionline.org/node/693).  Today I looked
at why.
Let me know if you are interested in filing reply comments to the US
Copyright office notice of inquiry.
Manon

In their own words: why they oppose the treaty to facilitate access
and sharing of works for people with reading disabilities
http://keionline.org/node/695

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)
***************************************************************************
Manon Ress
manon.ress@keionline.org
Knowledge Ecology International
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.:  +1.202.332.2670, Fax: +1.202.332.2673




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