[A2k] EFF: TPP Undermines User Control and That's Disastrous for Accessibility

Maira Sutton maira at eff.org
Mon Jul 27 11:23:32 PDT 2015


https://www.eff.org/deeplinks/2015/07/tpp-undermines-user-control-and-thats-disastrous-accessibility

July 27, 2015


    TPP Undermines User Control and That's Disastrous for Accessibility


The Trans-Pacific Partnership <https://www.eff.org/issues/tpp> (TPP)
threatens all users' ability to access information and participate in
culture and innovation online, but it's especially severe for those with
disabilities or who otherwise depend on content in accessible formats.
That's because it doubles down on broken policies that were heavily
lobbied for by Hollywood and other major publishers that impede the
distribution of accessible works.

The TPP would force countries to enact harsher restrictions, and in
other cases, undermine future efforts to reform laws that are already
actively robbing people's autonomy and control over their own devices,
purchased content, and online activities. If you've been following this
issue, you'd know that this is due to secrecy of negotiations and the
overwhelming influence that the copyright industries wield over trade
officials.

Of course, all of our rights are at risk when a select group of powerful
private interests dominate public policy considerations—but those who
have the most to lose are people whose interests are already often
marginalized and misunderstood by both companies and policymakers alike.
Over the years, this has been especially true in the realm of copyright.
The restrictions that pervade copyright enforcement create all kinds of
barriers for people with disabilities. They impede legal reforms and
even entire technologies that could enable knowledge access and cultural
participation for all.

The problem is that most creators and publishers of works, such as
books, movies, and software applications, don't readily provide or
anticipate alternative formats that are accessible for people with
disabilities. One glaring example is what the World Blind Union calls
the "book famine,"
<http://www.worldblindunion.org/English/our-work/our-priorities/Pages/On-Track-For-A-Book-Without-Borders.aspx>
in which only 5% of published books were ever made accessible for the
blind and people with print disabilities, and even worse, less than 1%
of those available in poor countries.

In short, publishers don't do enough to make works accessible to
everyone. They can, and sometimes do, go to some lengths to make their
commercial works more accessible—such as by adding subtitles or
descriptive audio to movies. Yet these measures don't account for
various kinds of unique needs people have, nor address the problem of
interoperability of closed formats with third-party or free and open
source platforms.


      Stronger Global Controls on Circumventing DRM

It's great when rightsholders include meta-data like closed-captioning
in their digital files—but if it's locked behind DRM, those subtitles
aren't useful for everyone who might want to use them. And sometimes, as
with the mess with HDMI captioning standards, this data ends up unava
<http://www.hdmi.org/learningcenter/faq.aspx#117>ilable for
<http://www.hdmi.org/learningcenter/faq.aspx#117>/anyone/
<http://www.hdmi.org/learningcenter/faq.aspx#117>.
<http://www.hdmi.org/learningcenter/faq.aspx#117> A quick hack could
turn transcriptions into a larger font size, or output them to another
assistive device, or another perfectly lawful accommodation. But such
hacks are prohibited under the anti-circumvention measures of the DMCA.
Even explaining to others how they can improve access is cast as
“trafficking” in a circumvention measure.

The TPP extends the United States' ban on interfering with digital
rights management (DRM) technologies which would make it extremely
difficult to tinker with devices and content or offer services to the
disabled to grant them better access without risking criminal liability.
The last leak reveals provisions that makes it a crime to distribute
tools and methods to get around DRM, irrespective of whether people are
using them for financially-motivated infringement.

If someone with a disability wants to circumvent DRM, they either have
to do it themselves or use illegally obtained tools to do so. The
criminal penalties for sharing anti-circumvention tools could be enough
to discourage tech-savvy individuals from sharing them online. This
effectively blocks all kinds of creative and educational works from
being transformed into accessible works.

The best way to make works accessible is by allowing people to control,
modify, and tinker with them themselves. And since most people don't
have the time or skills to do it, they should be able to rely on others
to do this for them. The most obvious solution would be to create
blanket exceptions to copyright that allow people to shift works into
accessible formats that fit their needs.


      Marrakesh Treaty: A Critical Step Towards Empowering Users with
      Disabilities

That's exactly what public interest advocates fought for in the Treaty
for the Visually Impaired. Also known as the Marrakesh Treaty, it is a
UN agreement that came out of the World Intellectual Property
Organization <https://www.eff.org/issues/wipo> (WIPO). It binds
signatory countries to create strong use exceptions for the blind and
people with visual disabilities to have access to books and
illustrations. Individuals or any "authorized" organizations can, under
the Treaty, circumvent DRM on ebooks or import accessible books from
another participating country for the purposes of enabling people with
visual impairments the ability to read those works.

After about a decade of intense negotiations, the Marrakesh Treaty was
finally concluded and signed in June 2013. It was a momentous
achievement not just for people with visual disabilities, but also users
of all kinds. It was the first treaty to ever enshrine the rights of
users in international law.

However, this treaty began as a much stronger, more comprehensive
project. Its advocates sought to protect and enshrine the rights of
people with other kinds of disabilities, as well as win protections for
various kinds of uses for a wider array of works. Major publishers and
studios ultimately failed at killing the treaty, but in the process they
were able to strip it bare of other rights and practical uses. This led
to a huge number of possible beneficiaries, like the deaf, becoming left
out. This was a direct result of pressure from the copyright industries
<https://www.techdirt.com/articles/20130608/13101023381/how-mpaa-fought-to-keep-audiovisual-materials-out-wipo-treaty-blinddeaf-how-thats-disaster-education.shtml>,
who heavily lobbied the U.S. and EU representatives to exclude the deaf
from the treaty. Unfortunately, they also succeeded in striking out
"audiovisual" works, like films and video games.

The Marrakesh Treaty is still an extremely valuable treaty, and when
it's
<http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=843>ratified
by 20 countries
<http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=843>,
it will finally go into effect and help address the world book famine
among thousands of the world's blind and visually impaired. But the
reality is that this treaty alone is not enough to protect the rights of
people with disabilities against the barriers created by copyright.

There were several instances when private industry reps, in addition to
government representatives, during negotiations cited existed trade
agreements' copyright provisions <http://keionline.org/node/1759> as
reason to reject the passage of the Treaty (this argument holds no
water, but is an issue we may explore in another blog post). The real
danger with the TPP is that it will further tip the policy environment
towards rightsholders and away from the public interest. Specifically,
the trade agreement could make it even harder to pass more international
user-rights focused instruments like the Marrakesh Treaty.


      Narrowing of Rights for More People and New Technologies

The passage of the Marrakesh Treaty led to a change in the TPP's
Limitations and Exceptions section of the Intellectual Property chapter,
expanding the definition of a legitimate use as one that is
"facilitating access to works for persons who are blind, visually
impaired, or otherwise print disabled" (some of this wording is still
contested, but on the whole is included in the most recent leak of the
agreement). This was of course a welcome change to see in the TPP.

What's worrying however, is that in order to pass a new international
exception for other kinds of disabilities, such as for the deaf, it will
require another agonizing, years-long process. While Marrakesh was
intended to set a lower limit on the number of potential exceptions for
accessibility, the wording of trade agreements like the TPP could turn
the same language into an upper limit. This is due to its approach to
copyright exceptions, exemplified by its "three-step test" provision
<https://www.eff.org/document/three-step-test>. It's a set of criteria
that governments must follow in order to pass any new exception (like
say, allowing works to be used for educational or even accessibility
purposes). In practice, the three-step test can embolden restrictions
against using copyrighted works, rather than being more permissive like
fair use.

So instead of providing only a narrow right to people with visual
impairments, the TPP could include an exception that would help anyone
who has difficulty accessing work due to a disability. But unlike at
Marrakesh there are no representatives of the disabled to make that
argument in the closed negotiating rooms of the TPP.

Advocates for increased accessibility have long understood that it's
about creating technology that is accessible for /everyone /who needs
it, not just a few carefully carved out classes of the “officially”
disabled. The Marrakesh treaty was a victory for providing global
exceptions to copyright to improve digital accessibility, at the cost of
only being permitted to offer those for the visually-impaired. The real
future is one where the tools to increase accessibility are available
and modifiable by those who are best able to customize and improve them:
the users themselves. The TPP, by attempting to freeze exceptions at the
Marrakesh level or worse, lock us out of that future. And by doing so,
it locks out millions from digital content they would otherwise have the
right and ability to enjoy.


-- 
Maira Sutton
Global Policy Analyst
Electronic Frontier Foundation - www.eff.org
maira at eff.org
Tel: 415.436.9333 x175

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