[A2k] Washington Post: Filmmakers’ group tries to reshape treaty that would benefit the blind

Thiru Balasubramaniam thiru at keionline.org
Sat Jun 22 15:34:15 PDT 2013


http://www.washingtonpost.com/politics/filmmakers-group-tries-to-reshape-treaty-that-would-benefit-the-blind/2013/06/22/f98e6130-d761-11e2-9df4-895344c13c30_story.html

http://www.washingtonpost.com/politics/filmmakers-group-tries-to-reshape-treaty-that-would-benefit-the-blind/2013/06/22/f98e6130-d761-11e2-9df4-895344c13c30_story.html

Filmmakers’ group tries to reshape treaty that would benefit the blind

 By Kimberly Kindy, Published: June 22

Hundreds of negotiators from around the world have descended on Morocco
this week to finalize a treaty aimed at ensuring that millions of blind and
vision-impaired people can get books in accessible formats like audio,
Braille and large-print.

But the treaty, years in the making, could now be in jeopardy because of
unresolved differences between advocates for the blind and the Motion
Picture Association of America, which says the accord could undermine
protections important for filmmakers, publishers and other major industries.

The agreement, known as the treaty for Visually Impaired Persons, would
allow for such books to be distributed internationally, which is now
largely prohibited, and encourage governments to allow books to be
converted to accessible formats without having to get permission from
copyright owners every time.

Advocates for the blind are pressing to extend the kind of rights afforded
by U.S. law — which allow books to be converted to accessible formats
without seeking permission from copyright holders — to the 300 million
blind and visually impaired people around the globe. Only 1 percent of the
world’s books are in such a format, according to the World Blind Union.

But the MPAA has been using its considerable clout with Washington
officials to press for changes in the accord, warning that loosening
copyright protections to help the blind could set a costly precedent.

“What happens here could affect other future treaties,” said Chris Marcich,
who is in charge of dealing with the negotiations for the MPAA and its
international wing, the Motion Picture Association.

The motion picture industry, along with counterparts in music and book
publishing, say that an international treaty making it easy to bypass
copyrights could do far-reaching harm in the digital age. Chipping away at
copyright protections is especially dangerous, they say, at a time when it
has become all-too easy for users to appropriate others’ content. They
pointed, for instance, to damage done by Napster, the online music-sharing
service that critics say upended the music industry.

Hollywood had already won several battles over treaty provisions. Now, with
the final scheduled round of negotiations underway, it is looking for more.
The MPAA says the draft remains unacceptable, and it is making a
last-minute push to win additional concessions. Advocates for the blind say
these changes, if adopted, would essentially gut the agreement.

“They suddenly come out of the woodwork in the 11th hour, and they’ve
risked blowing up the entire negotiation,” said Dan Pescod, vice chairman
of the World Blind Union’s campaign for reading rights.

If the differences are not resolved by the scheduled completion of talks on
Friday, the treaty will die.

Three-step test

The MPAA has already convinced the Obama administration to change course on
several key provisions and to pressure other countries to do the same,
interviews and records show.

Negotiators have dropped language in the treaty pertaining to movies and
videos — which, for instance, could have dealt with adding audio to
describe the on-screen action or extra-large subtitles for foreign films —
and narrowed the focus to books.

At the MPAA’s urging, negotiators have added language, called a three-step
test. In part, this could bar nonprofit groups from reproducing books in
accessible formats if this interferes with a copyright owner’s chance to
make money from the books as they would otherwise — for instance, by
developing a future market selling to the blind.

But the MPAA says the protections afforded by three-step test are still too
weak and wants them to be more effective. Moreover, Hollywood is strongly
resisting language in the draft that mirrors the concept of “fair use,”
long embodied in U.S. copyright law. Fair use says that copyrighted
material can be used without permission in certain circumstances, such as
for nonprofit educational purposes.

The American entertainment industry has long been a muscular advocate for
its interests. The movie business, along with television, music, cable and
Internet interests, contributed $20.7 million to President Obama’s
reelection campaign in 2012, according to the Center for Responsive
Politics, making entertainment the fourth-largest industry sector backing
the president. The heads of several major film studios, such as Warner
Bros., are among the largest bundlers of Obama’s campaign money.

Entertainment industry officials say their impact on the treaty
negotiations has been limited.

“If we had such influence, I wouldn’t be so concerned about the course of
this treaty,” Marcich said. “I don’t feel like we’ve had any undo influence
or disproportion weight in the process.”

Concerns raised

The Hollywood lobbyist cornered the chief U.S. negotiator, Justin Hughes,
just as the closed-door talks were breaking up for the day. Hughes appealed
for understanding.

“We can’t go any further. You can’t ask for too much,” Hughes urged,
according to another delegate who overheard the conversation that took
place in Geneva in April.

Hughes reminded Ted Shapiro, a copyright attorney who lobbies for the MPAA,
that Hollywood had already gotten what it wanted on movies, videos and
similar material, and that additional copyright protections had been added.

But the MPAA still was not satisfied, according to the account provided by
David Hammerstein, a Spanish politician and delegate to the negotiations
who overheard the exchange.

Hollywood was still strongly objecting to the fair use provision, which is
one of the legal principles cited in the United States to make books
accessible to the blind.

Shapiro, in an interview, said he did not specifically remember the April
encounter with Hughes but added that they have had several conversations.

“I was making interventions. My constant refrain during the interventions
on behalf of the Motion Picture Association was that it needed to be
consistent with the international copyright system,” said Shapiro, a former
general counsel to the MPA in Europe who now serves as an outside legal
adviser to the MPAA.

He said he raised concerns about fair use with Hughes and others on the
U.S. delegation, warning that other countries may not interpret the
provision the way Americans do and urged that fair use be dropped from the
treaty.

When the fair use provision was inserted into the treaty in February,
representatives of the U.S. entertainment industry responded angrily.

E-mails show that the MPAA and its members raised their concerns during
close contacts with U.S. officials, in particular with those at the Patent
and Trademark Office who are coordinating the negotiating effort. “I would
love to chat about last week’s debacle in Geneva,” said Scott Martin,
executive vice president for intellectual property at Paramount Studios, in
a February e-mail to Shira Perlmutter, director for international affairs
at the agency.

They met soon after, according to another e-mail from Martin, holding
discussions at Hank’s Oyster Bar, which he described as “the perfect spot.”

In that same e-mail to Perlmutter in mid-March, Martin describes the
conversation he had a day later with Hughes about possible changes in the
treaty. “I had a long lunch with Justin the next day and we discussed some
language that could address our concerns about the ‘fair use/fair dealing’
debate,” he wrote. “ I’m discussing the language with the other studios and
if they are cool with it we will discuss it further on a call with Justin
tomorrow.”

Less than a month later, the MPAA sent Hughes critiques of the treaty by a
pair of legal experts the group had hired. Included was sample language for
rewriting parts of the treaty.

They met soon after, according to another e-mail from Martin, holding
discussions at Hank’s Oyster Bar, which he described as “the perfect spot.”

In that same e-mail to Perlmutter in mid-March, Martin describes the
conversation he had a day later with Hughes about possible changes in the
treaty. “I had a long lunch with Justin the next day and we discussed some
language that could address our concerns about the ‘fair use/fair dealing’
debate,” he wrote. “ I’m discussing the language with the other studios and
if they are cool with it we will discuss it further on a call with Justin
tomorrow.”

Less than a month later, the MPAA sent Hughes critiques of the treaty by a
pair of legal experts the group had hired. Included was sample language for
rewriting parts of the treaty.

In that same e-mail to Perlmutter in mid-March, Martin describes the
conversation he had a day later with Hughes about possible changes in the
treaty. “I had a long lunch with Justin the next day and we discussed some
language that could address our concerns about the ‘fair use/fair dealing’
debate,” he wrote. “ I’m discussing the language with the other studios and
if they are cool with it we will discuss it further on a call with Justin
tomorrow.”

Less than a month later, the MPAA sent Hughes critiques of the treaty by a
pair of legal experts the group had hired. Included was sample language for
rewriting parts of the treaty.

The e-mails were obtained under the Freedom of Information Act by Knowledge
Ecology International, which is lobbying on the treaty to keep the
three-step test out and the fair use provision in.


Mixed signals

Patrick Ross, a spokesman for the Patent and Trademark Office, said the
U.S. delegation has received input from many interested parties, including
advocates for the disabled and copyright owners.

The U.S. government has sent mixed signals about whether it wants the fair
use provision to remain in the treaty after all. The State Department sent
an e-mail to foreign governments this spring asking them to support
deleting the provision.

“Quite frankly, we think that this reference could lead to overly broad
exceptions and, in the interests of pragmatism, we think it would be best
if we could drop this reference,” said a State Department communication to
African governments.

It continued, “Basically we think that by removing this fair practices
reference will be a big help in getting consensus in the United States to
negotiate the final parameters of a binding agreement in Marrakesh. Note
that we feel sufficiently strongly about this point to raise it with you
directly . . . .”

Tom Hamburger contributed to this article.



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