Fascinating Meeting at the Copyright Office
[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’s what 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’t think I’ve heard about a groundswell 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 “dueling moral high grounds” issue: authors rights and the rights of people with disabilities. The Author’s Guild asserts that they control the audio 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’s clear that they are being paid. The disabled community’s point is that they are being locked out of their right to read by a concern about the level of compensation to authors. And, it’s not even clear the authors would get more money short-term by locking out disabled people. I actually think they’re getting less by stopping people from buying ebooks who are unlikely to buy audio books at higher prices. When you’re contrasting the “maybe more money for authors” 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’t forget that the he said it’s 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’s 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’s the right long-term solution. But, we’re 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’t 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 “lead agency”), the White House, the State Department and of course Congress 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’t 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’t 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.