[A2k] Blog: Do we need an international treaty for reading disabled persons?

[Manon Ress]

An international treaty for reading disabled persons at WIPO
http://www.keionline.org/blogs/2009/02/20/treaty-for-reading-disabled/

By Manon Ress, on February 20th, 2009

Do we need an international treaty for reading disabled persons?

Yes, and today the World Blind Union is seeking international support
for a proposed Treaty for Reading Disabled Persons at the World
Intellectual Property Organization (WIPO). The next meeting where this
matter could be taken up is at the WIPO Standing Committee on
Copyright and Related Rights taking place in Geneva, May 25-29, 2009.

Should the US delegation to WIPO support the proposal?

Yes, the U.S. delegation should be the leader in supporting this
proposal. First, to be consistent with newly elected President Barack
Obama, =93We must build a world free of unnecessary barriers,
stereotypes, and discrimination=85policies must be developed, attitudes
must be shaped, and buildings and organizations must be designed to
ensure that everyone has a chance to get the education they need and
live independently as full citizens in their communities.=94 (April 11,
2008,) http://www.whitehouse.gov/agenda/disabilities/

U.S. support for this treaty would also be consistent with historical
and current practices since in many ways, the U.S. has done well with
designing policies that positively affect members of the disabled
communities.

The US Congress has historically recognized that copyrighted works
should, with respect to fair use, be accessible to and usable by
people who are blind. The legislative history of the Copyright Act of
1976 states that:

Another special instance illustrating the application of the fair use
doctrine pertains to the making of copies or phonorecords of works in
the special forms needed for the use of blind persons. These special
forms, such as copies in Braille and phonorecords of oral reading
(talking books), are not usually made by the publishers for commercial
distribution. While making multiple copies or phonorecords of work for
general circulation requires the permission of the copyright owner, a
problem addressed in section 710 of the bill, the making of a single
copy or phonorecord by an individual as a free service for a blind
person would properly be considered a fair use under section 107. H.R.
Rep. No. 94-1476, 94th Cong., 2d Sess. (1976).

Here again, in 1931, an Act of Congress established the free national
library program of reading materials for visually handicapped adults.
The program was expanded in 1952 to include blind children, in 1962 to
include music materials, and in 1966 to include individuals with
physical impairments that prevent the reading of standard print. It
depended on the cooperation of authors and publishers who granted
permission to reproduce works in special formats without royalty.
Please note that the period required to obtain permission from the
copyright holder has sometimes been significant. Even today, it is
estimated that blind, visually impaired and other reading disabled
people have access to less than 5% of what you can read.

And again, in 1984, the U.S. Supreme Court stated that copying =93of a
copyrighted work for the convenience of a blind person is expressly
identified by the House Committee Report as an example of fair use,
with no suggestion that anything more than a purpose to entertain or
to inform need motivate the copying.=94 (Sony Corp. of Am. v. Universal
City Studios, Inc., 464 U.S. 714 (1984))

Of course there are also other U.S. specific limitations on the
exclusive rights of copyright owners to ensure access for blind and
visually impaired individuals are to be found in Section 110(8) which
excludes performances specifically designed for and directed to people
who are blind or visually impaired using particular facilities; and in
Section 121 (the Chaffee amendment) which allows authorized entities
to reproduce copyrighted materials and convert these materials to
accessible formats for the use by blind or other persons with
disabilities.

Now, the Library of Congress must continue to ensure that the DMCA=92s
=93Circumvention of Copyright Protection Systems=94 provisions do not
undermine the nation=92s commitment to fair use rights that enable
participation by blind and visually impaired people. The rule is that
the prohibition against circumvention of technological measures that
effectively control access to copyrighted works shall not apply to
persons who engage in noninfringing uses of four classes of
copyrighted works. Literary works distributed in ebook format when all
existing ebook editions of the work (including digital text editions
made available by authorized entities) contain access controls that
prevent the enabling of the ebook=92s read-aloud function and that
prevent the enabling of screen readers to render the text into a
=93specialized format.=94 For purposes of this exemption, =93specialized
format,=94 =93digital text=94 and =93authorized entities=94 have the same
meaning as in 17 U.S.C. 121

One important exempted class is based upon proposals by the American
Foundation for the Blind and five major library associations to
address some of the problems experienced by the blind and visually
impaired in gaining access to ebooks. Clearly Ebooks can offer access
in an unprecedented way to the blind and the visually impaired
persons. They can allow the user to activate a =93read-aloud=94 function.
They can also permit access by enabling screen reader software, a
separate program for the blind and visually impaired capable of
converting the text into either synthesized speech or braille.

By using access controls tools, publishers of ebooks can disable these
functions and today too many ebooks are distributed in that way. The
disabling of these functions prevents the blind and visually impaired
from engaging in particular noninfringing uses such as private
performance, and basically prevents access to these works by blind and
visually impaired users. Let=92s be clear, the uses that visually
impaired persons make by using the =93read- aloud=94 function and screen
readers are noninfringing, and reasonable in our context.

To be fair, a literary work must exist in ebook format to be included
in the exempted class. In addition, the exemption is not available if
any existing edition of the work permits the read-aloud function or is
screen reader-enabled. A publisher can =93avoid=94 the exemption by
ensuring that for any of its books published in ebook form, there is
an edition accessible to the blind and visually impaired persons.

Thus, for some, the US situation looks pretty good and it is in many
ways. Bookshare (http://www.bookshare.org/) provides an amazing
collection to people with qualifying disabilities. =93With a Bookshare
membership, you can download accessible titles onto your computer and
read them at your convenience. A variety of reading tools give you a
range of options for reading your downloaded books.=94 It is the world=92s
largest accessible online library for people with print disabilities,
and as of this year a collection of more than 43,000 digital books
comprising a wide range of general fiction and non-fiction,
educational books, children=92s literature, textbooks and best sellers.

According to Jim Fruchterman, CEO of Benetech which operates
Bookshare, the goal is =93to put Silicon Valley technology into the
hands of people with disabilities to help them live powerful,
independent lives. =93Bookshare expects to offer 100,000 books in the
Bookshare library and serve hundreds of thousands of users by 2012.=94

So what is the problem we need to solve today and how will an
international treaty help to solve it?

Today, the out-of-date legal environment is a barrier for the
disabled. Instead of new technologies creating opportunities in a
world where visually impaired and other reading disabled persons from
all over the world should have access to a variety of documents at the
same time as people without reading disabilities, roadblocks are
created. It is often too difficult or impossible to locate and obtain
licenses from copyright owners. Even though most countries have
limitations and exceptions in copyright laws to enable works to be
made accessible for persons with reading disabilities without the
permission of copyright owners, the provisions vary considerably from
country to country (even among European countries), and are often
restrictive in practice, or focused on older technologies. Moreover,
the current regimes of limitations and exceptions do not encourage the
import and exports of accessible works (see Sullivan report).

Canadian blind organizations cannot have easy access to the US
collections (or France=92s for the Quebecois.) So, in reality, with all
of the limitations and barriers in place, the total number of works in
accessible formats is low for the average reading disabled person,
particularly in smaller market countries.

What are the main features of the proposed treaty that will assist the
disabled and how will the disabled benefit?

The two main features of the proposed treaty are (1) to provide a
minimum standard for limitations and exceptions to copyright for the
blind, visually impaired and other reading disabled persons, and (2)
to allow and encourage cross-border importation and exportation of
works in accessible formats.
The biggest beneficiaries of the treaty will be blind and visually
impaired persons living in developing countries, as they will have far
greater access to works currently only available in high-income
countries such as the U.S. However, all countries, including the U.S.,
will benefit from the liberalization of access to foreign collections
of accessible works (do you only want to read U.S. authors?), and from
the expansion of the rights for the visually impaired. Moreover, given
the importance of economies of scale, everyone will benefit from the
larger global market for accessible works.

The next meeting of the WIPO Standing Committee on Copyright and
Related Rights will take place in Geneva, May 25-29, 2009. The U.S.
delegation=92s support and leadership for increased access globally,
equivalent or even better to that currently enjoyed by visually
impaired persons in the United States, through an appropriate
international legal framework would be consistent with the history of
U.S. policy in this area and could move the proposal forward and
improve the lives of millions of blind, visually impaired and other
reading disabled persons throughout the world.  And thus enrich our
lives too.

=97=97=97=97-
For important background on this, see also: http://www.keionline.org/blogs/=
2009/01/28/sccr_norm-setting-lne/



***************************************************************************
Manon Ress
manon.ress@keionline.org
Knowledge Ecology International
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.:  +1.202.332.2670, Fax: +1.202.332.2673