[Ip-health] James Love: Why Is the Obama Administration Not Standing Up for People with Disabilities?

Manon Anne Ress manon.ress at keionline.org
Fri Jun 18 11:59:25 PDT 2010

James Love
Posted: June 18, 2010 01:16 PM

Why Is the Obama Administration Not Standing Up for People with


On Monday June 21, 2010, the World Intellectual Property Organization
(WIPO) will consider whether to adopt a work program on a treaty for
persons who are blind or have other disabilities. Behind the scenes, the
Obama Administration has been trying to scuttle the treaty, pressuring
other countries to abandon support for the treaty, and proposing an
alternative to the treaty that would do almost nothing to expand access
to copyrighted materials.

The recent U.S. actions against the treaty are orchestrated by the
United States Patent and Trademark Office (USPTO), an agency headed by
David Kappos.

[David Kappos Picture]

There are now many promising technologies to expand access for people
who are blind or have other disabilities. Digital works delivered over
the Internet or through cell phones can be accessed with refreshable
braille readers, through synthetic text to speech, or in other ways, It
is often expensive to take books and other copyrighted works created in
inaccessible formats, and to make digital versions that are accessible,
and also easy to navigate and use. (See the work of the DAISy

The United States spends tens of millions of dollars annually to create
accessible versions of copyrighted works, and despite this investment,
at best only about 5 percent of published books are accessible, and far
fewer periodicals and informal publications protected by copyright. Most
of the work in the U.S. is done under the Chafee Amendment -- an
exception to the rights of copyright owners. According to WIPO, 57
countries have similar exceptions. The actual details of the exceptions
vary considerably from country to country, and the majority of
developing countries have no exceptions for persons disabilities.

The United States, like most other countries, will not export its
accessible formats of works to other countries. The U.S. does not export
to Canada, Jamaica, Kenya, South Africa, England, Australia, India or
the many countries where people speak English as a second language.
Spanish speaking countries do not share accessible works with each
other. Each country pretty much has to create its own separate libraries
for the blind. This inefficient legal system has contributed to an
extreme scarcity of accessible works for persons with disabilities,
particularly in developing countries. Uruguay, for example, can only
produce about 50 new accessible works per year.

For more than 25 years, the World Blind Union, the International
Federation of Library Associations and Institutions (IFLA) and others
have pressed WIPO to create an enabling legal environment for the
sharing of accessible works across borders. This involves two things --
agreements on the rules for importing and exporting works, and some
harmonization of the exceptions themselves. To this end, a strong treaty
proposal was introduced in WIPO in 2009, by Brazil, Ecuador and
Paraguay,now joined by Mexico.

[Chris Friend of the World Blind Union Picture]

Publishers have opposed the treaty. At first the U.S. opposed discussion
of the treaty, but seemed to have changed its position in December of
2009. But more recently things have changed again, and not for the
better. What David Kappos recently described as a "breakthrough" in the
negotiations is a self described "consensus" proposal that seems to have
no consensus, and consists of a weak recommendation that countries
consider authorizing exports of works, under a new regulatory regime
designed by publishers.

The USTPO has been lobbying developing countries to abandon the more
ambitious and important treaty proposal, and reportedly falsely claiming
to have the support of blindness groups in the United States for doing

What changed? Three important things.

Ronald Kirk, head of USTR

   1. In 2009, Susan Crawford worked in the White House, and was an
important supporter of the treaty. Susan left the White House staff at
the end of last year.

   2. Lobbied by Publishers, including the (AAP), the MPAA, RIIA, SIIA
and IIPA, Ambassador Ronald Kirk, has weighed in against the treaty.

   3. Justin Hughes, the head of the US delegation to WIPO, has become a
candidate to replace Marybeth Peters, as the new Register of Copyrights
for the Library of Congress. Hughes does not want to alienate the AAP,

On Monday, four days of negotiations on this issue begin. Blindness and
other disabilities groups are being asked to lower expectations, and
accept something smaller, and less important, than what they need and
what should should have. I'm frankly embarrassed that my own government
is not providing more leadership on this issue of human rights and
social justice. I expected more out of the USPTO under David Kappos.

The situation in Europe is also depressing. After a long period of
opposition and then indifference to the Treaty proposal, the European
Union has offered its own alternative. How weak it it? Among other
things, it requires the "consent" of copyright owners to share works
under exceptions to copyright laws.

Why are the publishers and their responsive friends in the US and EU
governments so opposed the efforts to create strong global exceptions
for persons who have disabilities? They are afraid this will set a
precedent for other global exceptions, in areas where the markets are
significant, like education.

Pictures of David Kappos and Ambassador Kirk taken from agency web
pages. Picture of Chris Friend taken by author, and licensed under any
creative commons license.

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