[A2k] FW: HuffPo Blog on the WIPO Treaty for the Blind and Print Disabled

Chris Friend king.henry at btinternet.com
Mon Aug 27 14:05:24 PDT 2012

Dear A2K Colleagues,

A very big thank you to Jim Fruchterman for successfully blogging  in the
Huffington Post.

Just published today.


Hope you find this interesting.

Jim Fruchterman, Benetech

Who's Against Blind People Reading? Nobody!

Jim Fruchterman <http://www.huffingtonpost.com/jim-fruchterman>

Founder, Benetech, MacArthur Fellow

Posted: 08/27/2012 2:24 pm

So, why is it so hard to get an international treaty to help people with
disabilities that affect reading print?  Welcome to the weird politics of
intellectual property. Basically, we have approval of a policy, but are
unable to get a treaty to implement that policy.

[Note: most of the coverage, and my headline, implies this is a treaty for
just the blind, but it's actually for a wider group of people who can't use
print, such as severely dyslexic people, or people who have a physical
disability that interferes with holding a book.]

A major negotiating session on the treaty just concluded in Geneva, at the
World Intellectual Property Organization, where the effort to gain such a
treaty stalled. In this blog, I want to take you inside a current issue of
global importance, which is leading to headlines in global newspapers and
major media outlets like the Huffington Post

The Policy:

The policy being debated is whether there should be domestic copyright
exception for the benefit of people with print disabilities in all
countries, and whether the nonprofit libraries helping these communities in
one country can share their work with nonprofits in other countries.  The
essence of a copyright exception is that you don't have to ask permission to
make a version of a given book for people.

Many rich countries have an exception: our Bookshare library came about
because of Section 121 of the U.S. copyright law
<https://www.bookshare.org/_/aboutUs/legal/chafeeAmendment>  (often called
the Chafee Amendment for the Senator who sponsored it in 1996).  The
European Union had a policy directive to European governments suggesting
they pass such laws.  The recent human rights treaty on people with
disabilities, the Convention on the Rights of Persons with Disabilities the
CRPD), says that access to accessible information is a human right.  Article
30.3.3 of the CRPD says:

States Parties shall take all appropriate steps, in accordance with
international law, to ensure that laws protecting intellectual property
rights do not constitute an unreasonable or discriminatory barrier to access
by persons with disabilities to cultural materials.

The Obama Administration, which signed the CRPD, also publicly came out in
favor of copyright exception policy in 2009, as covered in Wired.com: "Obama
Sides With Blind in Copyright-Treaty Debate."
<http://www.wired.com/threatlevel/2009/12/obama-blind-treaty/>  This was a
pretty rare action for a government (under Republican or Democrat
presidents) that tends to back pro-industry IP treaties rather than
something that is clearly pro-consumer.

International exchange is rare, and that means people with disabilities in
the developing world are suffering. Bookshare has more than 50,000 books
available in the developing world today thanks to socially responsible
publishers. That's out of more than 155,000 titles available here in the

However, these publishers can only give us rights to books where they have
the rights.  Not only are books from mainly U.S., British, Canadian, and
Indian publishers in English are a good thing and interesting to people
around the world, most people around the world also need the locally
relevant books.  These are the books used in primary and secondary
education, as well as books in the local languages and relevant to the local
culture. Languages often fail to respect national boundaries (often legacies
of colonial pasts).  All countries need a copyright exception to help people
with print disabilities, as well as the ability to tap accessible books in
their chosen language from other countries that speak that language.

The Politics:

The intellectual property industries (like the motion picture industry)
haven't met a limitation/exception to copyright that they like.  And, these
industries have been very successful in driving international IP policies.
The tide of international enforcement has been in favor of owners, not
consumers and innovators.  Because of this industrial pressure, rich
countries with exceptions are trying to kill (or stall, or avoid) a binding

This position was well articulated by the straight-talking industry
representative, Allan Adler, the vice president for Legal and Government
Affairs at the Association of American Publishers.  In this extensive video
interview <https://www.youtube.com/watch?v=dxVcmOwBAsY>  (done by Jamie Love
of Knowledge Ecology), Allan is explicitly clear that while he's for narrow
exceptions for people with print disabilities, he's against a treaty because
it might set a precedent for more limitations on the rights of publishers.
He paints a worst-case scenario of the American educational publishers
losing their international markets because of a possible treaty (not the
treaty for people with disabilities) that might have a major exception
applying to education.  Of course, the U.S. has limited exceptions applying
to education and the world hasn't ended.  Watching the power of industry at
WIPO, the odds of a treaty passing with provisions that will destroy major
export markets of an American industry seem to me to be just about nil.

Even one of the top advocates for a treaty for the blind, Rahul Cherian of
Inclusive Planet, more or less said
<https://www.youtube.com/watch?v=CzKnVkcW7LQ>  that's his concern as well
(his comments on this issue are a little past three minutes into this clip).
His biggest worry was that the treaty would be scuttled by the African
delegates tying the disability issue to the larger issue of exceptions for
education, libraries, and archives.

So, this industry pressure results in the United States delegation sitting
on the fence.  The U.S. used to argue for a softer solution, a
recommendation or another kind of instrument not as binding as a treaty
would be (assuming it was adopted and countries passed laws to meet their
treaty obligations). Now, they are just silent on the treaty issue, while
apparently trying hard to accomplish something towards the policy objective
they support.

The main antagonists against the treaty are European, and they are fighting
a rearguard action against the treaty.  The two biggest players on the
continent are France and Germany, and they are squarely against the treaty.
Their opinions seem to drive the delegation from the European Commission.
The UK and a couple of smaller countries are for the treaty, and most of the
rest are (publicly) silent. However, the European Parliament has come out
overwhelmingly in favor of the treaty, but this doesn't by itself lead to a
change in negotiating stance from the Commission.

This leads to some odd messages coming from the negotiators for the
Europeans.  They spent most of the last negotiating session trying to weaken
the proposed treaty by amendments: sort of a poison pill strategy against
the disability groups.  That is, you advocates might finally get your
treaty, but it won't advance the policy you want.  One way was to set the
bar so high for using the exception that only groups in rich countries would
qualify, which would defeat the purpose of helping the great majority of
people with disabilities in developing countries that need it. The rich
countries already have laws like this (like the U.S.).  Another way is to
put provisions into the law that overturn centuries of library practice,
like requiring extensive record keeping about the books provided to library
patrons (anathema to U.S. librarians used to fighting the government or
publishers trying to overturn privacy presumptions).

Right after the session completed, the extensive press coverage of the
negative role played by the European delegation led an EU Commissioner to
issue one of the more disingenuous press releases I've had the pleasure of
reading in years: Commissioner Michel Barnier determined
mat=HTML&aged=0&language=EN&guiLanguage=en>  to ensure equal access to books
for visually impaired persons.

My translation into straightforward language:

We've spent the last couple of years trying to kill this thing based on
direction from industry and European countries like France and Germany, and
we spent the last session trying to poison it, but we're looking bad right
now to the rest of the world, and so we're going to say we've been for this
treaty all along, but we just need France and Germany to change their mind
(not an actual quote, to be clear!).

The Solution:

So, what's the solution?  It's time for the U.S. to ride to the rescue, and
do the right thing.  President Obama's team needs to make a decision and
come out in favor of a treaty.  If the U.S. did this, I believe the global
consensus would move to passing an effective treaty that helped people with
disabilities while protecting the interests of the publishing industry.

It's the right thing to do.  The argument that doing the right thing might
set the precedent for doing a possible wrong thing is weak on both
intellectual and moral grounds.  The U.S. has these copyright exception
provisions, and if it's good enough for the U.S., it should be good enough
for the world!

I'm sending a letter to the White House, and to Ambassador Ron Kirk (the
U.S. Trade Representative), David Kappos (head of the U.S. Patent and
Trademark Office), Senator Tom Harkin (the Senate's strongest advocate for
the interest of people with disabilities) and to Professor Justin Hughes,
the head of the U.S./WIPO delegation, encouraging them all to do the right
thing: advocate for a treaty and make history for people with disabilities,
by freeing their access to the books they need for education, employment and
inclusion in society!

Selected recent press coverage and resources:

Boing Boing
US stonewalling treaty that would help disabled people access copyrighted

The Guardian (UK): US and EU blocking treaty to give blind people access to

The Kojo Nnamdi Show (public radio in Washington DC): A Treaty To Make Books
More Accessible

The European Blind Union's map of European government support/opposition to
the treaty  EU MS support for WIPO treaty spring 2012-03-29

The Transatlantic Dialog: Kicking and screaming at WIPO: Dragging the EU and
the US to the negotiating table <http://tacd-ip.org/archives/733>

Electronic Frontier Foundation:
 International Failure: Are We Going to Let Countries Disenfranchise the
Visually Impaired?

Follow Jim Fruchterman on Twitter: www.twitter.com/jrandomf

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