[A2k] Google files strong comments in support of WIPO treaty for reading disabilities

[James Love]

http://keionline.org/node/710

December 4, 2009

Maria Pallante
Associate Register for Policy &
International Affairs
U.S. Copyright Office

Re: Notice of Inquiry and Request for Comments
on the Topic of Facilitating Access to Copyrighted
Works for the Blind and Other Persons with Disabilities

Dear Maria:

Google is committed to overcoming barriers to access to reading
materials for persons who are blind or have other disabilities.  This
commitment includes developing new methods of making digital copies of
books available to persons with disabilities in Google Books and in
other Google services. Google has also developed Accessible Search, a
product designed to identify and prioritize search results that are more
easily usable by visually impaired users. Google Search helps users find
a set of documents that are most relevant, while Accessible Search goes
one step further by helping users find the most accessible pages in that
result set.  Accessible Search tends to favor pages with few visual
distractions and pages that are likely to render well with images turned
off. Accessible Search is a natural and important extension of Google's
overall mission to better organize the world's information and make it
universally accessible.  It is designed to help those assisting the
visually impaired to find the most relevant, useful and comprehensive
information, as quickly as possible.

Google also recently announced that the latest release of its Android
1.6 software platform for mobile devices contains new accessibility
features designed to make Android applications more widely usable by
blind and visually-impaired users. Android 1.6 includes a built-in
screen reader and text-to-speech engine which make it possible to use
most Android applications, as well as all of Android's default user
interface, when not looking at the screen.

Google has worked closely and productively with authors, publishers, and
disabled groups, and will continue to do so. At the recent hearing
before the U.S. House of Representatives, Committee on the Judiciary, on
the Google Book Search settlement, the testimony of blind and other
disabled groups compellingly demonstrated the necessity of curing the
historical tragedy resulting from the miniscule number of works
available to this community. The effort to rectify this imbalance will
not come overnight, and will not come from a single solution.  Efforts
of public institutions, such as the Library of Congress and other
national and international bodies, voluntary agreements among
stakeholders, and we believe an international treaty setting forth
global norms, are all required in order to accomplish this large, but
morally obligatory task.

Voluntary stakeholder agreements, while critical to the success of the
task, cannot realistically be expected to solve all problems. The lack
of any substantial progress to date, for what is a long-standing
problem, is proof of this point if any further proof is required =E2=80=94f=
or
example, since 1983, WIPO has periodically published model laws
regarding copyright exceptions for persons who are blind or have other
disabilities. While we appreciate the concern that proposed treaty
negotiations would take place while voluntary measures are being
discussed, voluntary agreements or model laws must be viewed as a
complement to, and not a substitute for binding international norms: the
problems involved with cross-border export and import of works alone
render such agreements inadequate on their own, as well as the need to
achieve harmonization of minimum levels of access. =E2=80=9CHard,=E2=80=9D =
and not just
=E2=80=9Csoft=E2=80=9D solutions are required.


Accordingly, Google submits these reply comments in support of the
proposal that WIPO=E2=80=99s member states consider a new treaty for the bl=
ind
and other persons with disabilities. At the next SCCR, the United States
should formally propose that the SCCR begin discussing the contours of a
legally binding instrument to effectively and comprehensively address
the clearly enumerated issues of access that the visually impaired
community has articulated, one expression of which is the draft treaty
prepared under the auspices of the World Blind Union and proposed to
WIPO=E2=80=99s member-states by Brazil, Equator and Paraguay. In doing so, =
we do
not prejudge what a final treaty might look like, but we do believe that
the time for doing so is not only not premature, but overdue. As the
ancient Jewish sage Hillel said, =E2=80=9CIf not now, when?=E2=80=9D

In reviewing the initial comments, we are concerned that some of the
comments are simply stating opposition to a larger agenda of limitations
and exceptions. We believe this is an unproductive approach to solving
what is a discrete, long-standing problem that affects a group that
needs and deserves the protections of the international community.
Solving this problem is not solving or prejudging different, larger
problems. The failure of the international community to solve this
particular problem may well cause some to question whether the
international community is capable of solving, through our copyright
system, any problem. Contrary to the concerns expressed by some, we
believe that quick action in concluding the proposed treaty =E2=80=93 in
whatever final form it may take =E2=80=93 will send a strong, positive sign=
al
that the copyright system can function productively in response to
situations where an international response is clearly necessary and in
the public interest. Such a treaty will make future debates on other
issues more productive, as well as build confidence in multilateral
processes.

We will now address the first two questions set forth in the NOI. Our
views on the final two questions set forth in the NOI are obvious from
these introductory remarks.

Question Number 1. How Would the Proposed Treaty Interact with U.S. Law?
Because our concern is with starting the process of negotiations and
developing appropriate solutions and not with the final text, our view
is that the United States should not decline to enter into treaty
negotiations because there may be a concern that U.S. law may ultimately
have to be changed. This was not the approach the U.S. took in
considering Berne adherence, the TRIPS Agreement, or the 1996 WIPO
treaties, all of which did result in changes to U.S. law, some
fundamental. If it were the case that the United States would only enter
into treaty negotiations if there was no prospect of changing U.S. law,
we doubt our government would be involved in any, or only very few such
negotiations. Finally, we note that the U.S. government has articulated
on the record at WIPO several times that it believes existing US law
already has the necessary provisions to ensure access to works for the
visually impaired are facilitated.


The more advisable approach, in our opinion, is to determine whether the
proposed treaty as an idea represents good policy, and whether the
current proposed draft text is so far from U.S. law that it is unlikely
the U.S could ever adhere to a treaty. On the first point, a treaty in
our view represents not just good policy, but essential policy. On the
second point, we believe principles expressed in the draft treaty is
well within the range of either existing law or desirable and obtainable
changes to U.S. law if that is required - =E2=80=93 and in any case, in the
normal course of negotiations of this kind, the U.S. would be perfectly
within its prerogatives to put forward treaty language proposals of its
own along with other member states.


Question Number 2. Compatibility of the Proposed Treaty with U.S.
Obligations under with International Law

The same concerns expressed in our remarks on the first question apply
to the second question as well.  There is ample room for crafting
relationships between the proposed treaty and existing international
law; and in any event, the almost Talmudic objections found in some of
the comments seem more intended to find ways for the proposed treaty not
to work, than to make it work. To start negotiations, it is not
necessary to agree with exact proposed drafting.  Rather, what is in the
draft text is a starting point for discussions.

We do believe, consistent with other international agreements, that the
provisions of the treaty should represent minimum requirements, and not
a ceiling beyond which existing or future laws cannot exceed.


Thank you for the opportunity to submit these comments on this important
initiative.


Respectfully,

William Patry
William Patry
Senior Copyright Counsel
Google Inc.
79 Ninth Avenue
New York, N.Y. 10011

--
James Love, Director, Knowledge Ecology International
http://www.keionline.org | mailto:james.love at keionline.org
Wk: +1.202.332.2670 | US Mobile +1.202.361.3040 | Geneva Mobile +41.76.413.=
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