[A2k] Jim Fruchterman's report of meeting with Pallante at Library of Congress

[James Love]

Jim Fruchterman's wide ranging report of meeting with Maria Pallante and
others at the Library of Congress.  They talked about reform of the
Chafee Amendment, the Amazon/Kindle/Text-to-Speech disputes, and WIPO
Treaty.

One quote: "Nothing I heard from the Copyright Office made me think they
were pro-Treaty." However, LOC confirms that White House official Kareen
Dale's earlier more open statement is U.S. policy.

http://benetech.blogspot.com/2009/06/fascinating-meeting-at-copyright-offic=
e.html

Sunday, June 14, 2009
Fascinating Meeting at the Copyright Office
by Jim Fruchterman

Last Friday I spent almost two and a half hours in a wide-ranging
conversation with Maria Pallante of the Copyright Office (and two other
folks whose full names I didn't write down). I came away with a much
better understanding of the issues they are exploring and certainly did
my part to articulate why I support the positions we have.

[Long post alert!]

I would characterize the atmosphere as one of informed and intelligent
skepticism on the part of the Copyright Office, with many questions
exploring different positions. We discussed Chafee, especially in the
context of the Amazon text-to-speech brouhaha, and the proposed
international treaty that was tabled at the WIPO SCCR meeting in Geneva
last month.

The Chafee Amendment
The U.S. copyright exemption for serving the print disabled is commonly
called the Chafee Amendment: Section 121 of copyright law. It=E2=80=99s wha=
t
makes our Bookshare service legally possible.

The fact-finding public hearing and request for comments seemed to have
two purposes: both to understand how Chafee is working and to report
back to WIPO about the U.S. national experience. In our conversation, I
got the impression that the Copyright Office is getting ready in case
Chafee is revisited. That would be the responsibility of the Copyright
Office, to advise Congress on any changes to domestic copyright
legislation.

That worries me, because I don=E2=80=99t think I=E2=80=99ve heard about a g=
roundswell of
demand for changing Chafee in the United States, other than when one
textbook publisher's representatives get up in public and sound like
banking executives from five years ago (if the government would just
stop regulating us, we'd take care of everything). So, I think advocates
should be watching out for any signals along these lines. Of course, if
there is an international treaty on the topic and the U.S. ratifies it,
then there probably would need to be changes to Chafee and U.S.
copyright law.

The Amazon Text-to-Speech issue

This one has gotten a lot of press, especially since the National
Federation of the Blind and the Reading Rights Coalition has formed to
fight the soundproofing of books on the Kindle2. The most interesting
part of the conversation was around what I call the =E2=80=9Cdueling moral =
high
grounds=E2=80=9D issue: authors rights and the rights of people with
disabilities. The Author=E2=80=99s Guild asserts that they control the audi=
o
rights and that delivering a text ebook to a device which could speak it
aloud with synthetic text-to-speech and that their commercial market for
audio books will someday be significantly affected by TTS. The Reading
Rights Coalition is fighting against being locked out of these books by
DRM, what is often called soundproofing the book after the paper George
Kerscher and I wrote years ago.

My main point is that the two high grounds are not the name in impact.
Authors are fighting over how much money they get: it=E2=80=99s clear that =
they
are being paid. The disabled community=E2=80=99s point is that they are bei=
ng
locked out of their right to read by a concern about the level of
compensation to authors. And, it=E2=80=99s not even clear the authors would=
 get
more money short-term by locking out disabled people. I actually think
they=E2=80=99re getting less by stopping people from buying ebooks who are
unlikely to buy audio books at higher prices. When you=E2=80=99re contrasti=
ng
the =E2=80=9Cmaybe more money for authors=E2=80=9D against the civil rights=
 of blind and
print disabled people to be treated equally, I proposed you have to come
down in favor of the civil rights of disabled people.

Of course, the Librarian of Congress has pronounced on this topic
already! Don=E2=80=99t forget that the he said it=E2=80=99s legal for blind=
 people to
break off the DRM on ebooks they buy so that they can listen to them.

We did some exploration of the likely impacts on the market for audio
books: that seems to be one of the major policy concerns about the
text-to-speech issue. Putting on my technical hat, I pointed out that
the technical advances needed to make synthetic speech a reasonable
alternative to human narration were years away and that gave author=E2=80=
=99s
plenty of time to price these conditions into their negotiations with
publishers. Of course, very few authors will have the power in practice
to negotiate these terms, but it's a long way off before TTS can touch
human narration from a market standpoint.

We believe that print disabled people should be able to buy accessible
books at the same time and at the same price as nondisabled people. It=E2=
=80=99s
the right long-term solution. But, we=E2=80=99re not willing to lose the
copyright exemption and let down the next two or three generations of
print disabled people during the transition to equal access nirvana!

Geneva, WIPO and the SCCR

Our final conversation was about international issues around access for
people with print disabilities, based on the recent meeting of WIPO's
Standing Committee on Copyright and Related Rights("SCCR"). The hot
topic was the proposal made by Brazil, Ecuador and Paraguay, for a
global treaty (a treaty for which I was part of the expert drafting
team). The goal of the Treaty in rough terms is to set a Chafee-style
exemption as a norm around the world, and enable cross-border sharing of
accessible materials. One of the big problems today is that copyright
exemptions only work in one country at a time, and that materials
produced under a copyright exemption in one country can=E2=80=99t be shared=
 with
disabled people in another country.

My summary of where the issue is generally: the developing world and
people with disabilities are for the treaty, and rich countries and the
publishing industry are against the treaty. The publishing industry has
put forward an alternative to the treaty called the Stakeholders
Platform which is based on voluntary action, which the disability
community feels is the status quo, which is not good enough.

Nothing I heard from the Copyright Office made me think they were
pro-Treaty. They did confirm that the statement that Kareem Dale of the
White House gave me earlier in the week did represent the official
position of the U.S. Government, and it talks about being interested in
working on addressing the problem and discussing a wide range of
solutions including the proposed Treaty. But, the advocacy groups
present in Geneva felt that the U.S. delegation was against the Treaty
solution.

There seems to be a concern about importing accessible books into
countries where the publisher hasn't actually published the print book.
These seems to be an important part of international copyright law. Of
course, my pragmatic view is that many, many people can simply order
books from the UK or India today over the Internet, and I didn't see a
reason to deny a person in the developing world a book they need when
the publisher didn't bother to publish the book in that country.

In Geneva, the US government did provide a statement as a result of
their fact-finding work about Chafee. But, it mainly talks about the
complexity of the issue. Pallante did point out that the U.S. did
support the final statement which approved discussing the Treaty
proposal in the next SCCR meeting.

I think that the advocacy community has an opportunity to continue to
lobby the U.S. government to try to get it to actively support the
Treaty. It sounds like there will be more public input on these issues
in the future, getting ready for the next SCCR meeting. We have multiple
places to lobby: the Patent and Trademark Office (apparently the =E2=80=9Cl=
ead
agency=E2=80=9D), the White House, the State Department and of course Congr=
ess
and the Copyright Office (which is linked to the Library of Congress).
Given that the Obama Administration is still in the middle of making
many political appointments, the key position of Director of IP (bow to
Richard Stallman who detests the term 'intellectual property') at the
PTO is still vacant.

We discussed why I thought now was a good time for a treaty: shouldn=E2=80=
=99t
there be more effort at the national level first? I pointed out that the
disability community had just been part of negotiating the Global
Convention on the Rights of People with Disabilities and that the
community was experienced using a treaty approach to secure rights
globally that in many cases had been in place in the richer countries.
The need for an exemption is even greater in the developing world,
because disabled people are really at a much greater disadvantage. Blind
people in the U.S. can realistically talk about buying Kindles because
of decades of civil rights action and legislation (and the battle for
equal opportunity is nowhere near over here in the U.S.). Disabled
people in the developing world are the poorest of the poor.

One point that the Copyright Office made is that the U.S. already has a
good copyright exemption in place, as do many of the richer countries.
Of course, one of our advocacy positions is why would the U.S. be
against duplicating in the world a policy approach that is used here
with great success? We just need to make sure that any global treaty
that is negotiated doesn=E2=80=99t make things worse for people with
disabilities here in the U.S.! But, it does make it somewhat harder to
get the advocacy juices flowing here in the U.S. to support a Treaty
that would mainly help people with disabilities outside the U.S.

Disability advocates have been asking me how they can help increase the
chances for this effort. I'm not the best person to advise on advocacy
strategy, but I've certainly heard from the advocacy professionals that
this treaty needs the support of the Obama Administration. So, there
will need to be advocacy on the different agencies that will participate
in drafting the approved positions for the delegation to the next SCCR
meeting in November. I understand that there is a WIPO general assembly
meeting at the end of September, and that there may be an attempt to
kill this then (I don't have a clue how that works).

So, listen for the next round of public outreach and respond then with
why you support this treaty. And, if you can, lobby the White House,
Congress, the PTO, the State Department and the Copyright Office to back
this. Enlightened disability legislation is a proud American export!

At Bookshare, we are especially interested in reaching out to the
disability communities in the developing world. They need what we have
more the most, and our efforts to make our books accessible on
inexpensive devices like cell phones and MP3 players will be even more
important there. Right now, we're relying on the good will of the
publishers (and there is a lot of good will there) to voluntarily allow
us to export a small percentage of our books with their permission
internationally. But, the idea of Bookshare is to empower the community
to play the largest role in solving the book access problem. We need
domestic copyright exemptions so that local communities can scan the
books they need in their languages. And, we're standing by to provide
the technology infrastructure that makes this community action
possible.

--
James Love, Director, Knowledge Ecology International
http://www.keionline.org | mailto:james.love at keionline.org
Wk: +1.202.332.2671 | US Mobile +1.202.361.3040 | Geneva Mobile +41.76.413.=
6584