Limits on Creation, Distribution of Accessible E-books Debated in Visually Impaired Treaty Process

Requiring authorized entities to determine if accessible versions of copyrighted works are commercially available at a reasonable price in each market will place undue burdens on the authorized entities, advocates said. “It’s burdensome and it casts uncertainty,” lawyer Jonathan Band, who represents the American Libraries Association, the Association of Research Libraries and the Association of College and Research Libraries, told us. A treaty designed to make works accessible for the visually impaired should “make the whole thing as straightforward as possible” to increase the amount of material that can be formatted to be accessible, he said. Band said the text should eliminate “commercial availability” requirements altogether.

Advocates have raised concerns about which “authorized entities” are allowed to create and distribute the accessible works. The draft text of the treaty said an authorized entity is one that is “recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis” or “a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations.” This raises issues about organizations that serve the visually impaired, but do not consider it an institutional obligation or primary activity, Rangnath said. “The case of the library or educational institution is a good example” because organizations like those consider the facilitation of reading by the visually impaired as one of their purposes, but it may not be their “primary activity,” she said. “How primary does serving the blind have to be?” Concerns about copyright infringement related to which entities are able to create and distribute the works are overblown, Band said. There is much more opportunity for infringement with the regularly-formatted works that are electronically distributed, he continued. “The problem is never going to be the blind people or the authorized entities."

Potential limits on the ability of the visually impaired to break digital rights management (DRM) software so they can reconfigure e-readers’ software and hardware to make e-books accessible are troublesome, Rangnath said. Copyright holders seeking to increase the strength of their protections are advocating for the creation of an administrative process to regulate attempts to break DRM, which are treated differently under each participating country’s laws, she said. “The strength of the provision to break the DRM has been watered down."

Inclusion of the three-step test in the treaty’s language is the creation of a “ceiling on limitations,” Band said. The three-step test -- established in the Berne Convention and requiring that limitations and exceptions to copyright occur “in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author” -- is “really vague,” Band said. Some stakeholders have suggested including language that specifies that the treaty does not negate a country’s existing obligations to follow the three-step test when considering exceptions and limitations, he said. “For some people, that’s not good enough.” IP rightsholders have pushed for the inclusion of language that reinforces the three-step test, Band continued.

IP rights groups have called for the treaty to do more to protect those rights. The treaty must address the rights of copyright holders as it addresses limitations and exceptions to those rights, Intellectual Property Owners Association wrote acting Director of the U.S. Patent and Trademark Office Teresa Stanek Rea in April. The treaty should not allow importation of a reformatted work where that work “is commercially available and accessible,” and it should not expand fair use because “many WIPO member countries do not have proper legal and institutional mechanisms in place that would allow them to implement fair use effectively and fairly,” the letter said. The treaty should incorporate specific language about the three-step test, the letter said. “If the three step test is not incorporated ... limitations and exceptions may apply, while basic copyright protections do not."

The treaty should respect the three-step test, as it “is a foundational aspect of international copyright law, and it is critical to enabling creative works for consumers available through a wide variety of distribution channels,” wrote U.S. Chamber of Commerce Global Intellectual Property Center President David Hirschmann in an April letter to Rea. Failing to include three-step test requirements in the treaty would “threaten to permit limitations to copyright that unreasonably prejudice the copyright owner” and “set a profoundly negative precedent for future agreements,” Hirschmann said.

IP rightsholders beyond copyright holders have no place in this conversation, advocates told us. Groups like the Intellectual Property Owners Association -- which represents a number of patent holding companies, such as Procter & Gamble, Xerox and Caterpillar -- “are opposed in principle to a treaty about exceptions,” Band said. Through this treaty process, groups representing visually impaired people are arguing that reading is a human right and that “human rights trump copyrights,” he said. “If you're a patent holder, especially if you're a pharmaceutical company, you don’t like that argument.”

MPAA and the National Federation of the Blind jointly urged negotiators to come up with a treaty without addressing “extraneous agendas” that seek to reform the copyright system, earlier this month (CD June 3 p21). Many advocates expressed frustration at the MPAA’s continued involvement in the treaty, despite the fact that the document will not address making audiovisual works accessible for the visually impaired. Audiovisual works “were excluded in large measure to keep [the] MPAA out,” Band said. Sohn called MPAA’s campaign against limitations and exceptions in the treaty “disingenuous” and “cynical.” In its attempt to place a ceiling on limitations and exceptions for the visually impaired, the association goes “after the most sympathetic group of people you can go after,” Sohn said. The MPAA opposes “any weakening of copyright, even for the most humanitarian reasons,” she said.

Ultimately, negotiators are facing pressure to come up with some kind of treaty that aids the visually impaired, Sohn said. “The U.S. government will look really stupid if they don’t get this done in a way that’s acceptable to the blind groups.” Negotiators want to produce a treaty, which is “generally a good place to be” for advocates, Rangnath said. Now the question will be, does it make visually impaired people happy, she said.