Sunday, June 14, 2009

Fascinating Meeting at the Copyright Office

Last Friday I spent almost two and a half hours in a wide-ranging conversation with Maria Pallante and Michele Woods of the Copyright Office (Michele's name updated, plus a summer law clerk attended). 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’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.


Darrell said...

Wow! Would Congress really consider denying us access to more than 50,000 accessible books by repealing Chafee? I feel I'm one of the few people out here who's doing any sort of significant advocacy on blindness issues, treaty included. Your findings have me gravely concerned now. We can't even get our own blindness organizations to get accessibility right, though, so it seems, so how can we expect anyone else to work with us? Despite living in the 21st century, ignorance about accessibility continues to abound. This hasn't been one of the better days on the access front in my world. :-(

Jim Fruchterman said...

I wouldn't leap to that conclusion, Darrell. Revisiting it is not the same as considering repealing it. And having spent two days on the Hill last week telling congressional staff how well it's working, I didn't get a hint of congressional dissatisfaction with Chafee.
The biggest objections to Chafee I've heard come from Pearson, the largest K-12 textbook publisher, but I doubt they could mount a successful campaign to get rid of it.

Mia said...

Thanks for this. You've confirmed my understanding of the issues.

Besides the issues listed though, I don't understand how those against extending rights to print-disabled readers in other countries, don't get that by denying them legal recourse to accessible materials, they are basically giving them no recourse than to use pirated materials. Regardless of one's personal stance on piracy, I've generally understood that publishers are against it, so it makes no sense to me why they're basically saying, "By denying you a means of legal access, we're going to have to force you to resort to the avenue we fear most."

I tend to think a better coalition needs to be built between disability activists and nondisabled activists for other, but related, concerns, and the area of information access is a great example of that.

Jim Fruchterman said...

To be honest, Mia, the possibility of disabled people being driven to piracy for obtaining access hasn't get brought up much in policy circles. I did see an Ars Technica article on this recently, though: Landmark study: DRM truly does make pirates out of us all. Piracy by people with disabilities is a tiny problem, and not much of a solution to our access problem.

Bob Martinengo said...


Don't forget that RFB&D was in business for 45+ years before the Chafee Amendment was passed (and the NLS longer than that).

Yes, they had to clear copyright for every book, and yes, that was sometimes a pain, but it didn't stop them from building an incredible library of audio textbooks.

I honestly don't think its a matter of if, but when, Chafee will be reviewed (see for an idea of how such a review might look).

Maria Pallante said...


Thank you for coming in on Friday. Here’s a point of clarification.

When we spoke, we did not discuss any general intent to "revisit" the Chafee Amendment in the far-reaching sense of removing or abolishing it, which appears to be the concern you express in your post (and the conclusion apparently reached by a commenter). To be clear, not only did we not discuss any such proposal, but the Copyright Office has not been considering such a proposal.

Rather, as we indicated, the Copyright Office (along with the Patent and Trademark Office and other agencies) has been looking at the Chafee Amendment in the context of reporting back to WIPO about the US experience, which was the assignment of member states going into the recent WIPO meeting (May 25-29, 2009) and is an on-going process. Thus, we will continue our inquiry as to ways in which Chafee has worked well and/or worked badly for the blind and visually impaired in practice --- not only in terms of the copyright exception itself, but in terms of the interrelated issues of costs, standards, technology and business practices that inform how the exception is implemented. Please see the Copyright Office website at

In the months ahead, we also will be looking at the Chafee Amendment to see how it (and other provisions of U.S. law) would interact with the treaty proposal that was tabled by Brazil, Ecuador and Paraguay at the WIPO meeting. Because copyright treaties are implemented through the national laws of member states, this is an essential step in analyzing the proposal and one for which the U.S. government will continue to solicit the views of stakeholders.

David Arocho said...

The Amazon reader issue is not as simple or clear cut as presented by NFB and the coalition. Authors have the legal right to decide how their work is to be promoted and distributed. Access to the Kindle, as to computers, cell phones, etc. may be achieved by external means without compromising the rights of authors and publishers. Amazon could have insisted that authors who want to participate in the Kindle program agree to audio access, but it decided that it was not financially viable to do so. One can and should fault them for that; however, taking on the authors and the publishing industry is not a winning position for those of us who are blind. Unless you advocate the abandonment of copyrights altogether, the argument that we have a right to free access to everything is not tenable. We have the right to equal access - that is, in this case, to the ebook as is, just as we have access to a printed text. It is surprising that NFB should advocate that blind people have a right just on the basis of blindness, as a special dispensation, to the private works of authors, when it has carefully guarded access to the work of Dr. Jacobus TenBroek, reserving all rights to itself until it figures a way to sell the material. It is also worth pointing out that the access sought to the kindle books is much wider than just to blind readers. It has been the narrow scope of Braille and talking books for the blind which made it possible to get the exemptions which were realized in the U.S., the United Kingdom and some other developed countries. As the scope was widened to "print handicapped" - which can even include those unable to read because of illiteracy - that the troubles began. The concern is not a trivial one, that publication rights an be seriously compromised if digital distribution is so easily made available. Another claim which the blog here makes is that synthetic voice reproduction is years away from substituting for acceptable narration. This is just not so, as many of the currently available synthetic voices are more than adequate for the purpose. In fact, the problems which digital reproduction poses for authors, composers and performers is a significant challenge for these industries quite apart from issues of accessibility for persons with disabilities. It is not in our interest to muddy the waters with the current agitation. I am very much in favor of reforming copyright law to make these materials more easily accessible to all; claiming special rights on the basis of disability, which in turn is defined in broader and broader terms, is not the way to go.

Anonymous said...

To me and our members this is all about whom get's what level of access to which books at what price,and should not authors get a bigger cut of the pie. That said it's clear to me why the USDOJ is looking into some of this mess in respect to restraint of trade. They should.

Jim Fruchterman said...

David: this is the essence of the dueling moral high grounds point. Your position is that there is no significant civil rights issue here. But, I'm sure NFB would compare this to denial of service in a restaurant to a disabled person, which is a violation of law today (and something we used to leave to restaurants to decide, but then passed civil rights legislation that took it out of their hands: saying it was wrong to deny service to disabled people). Is the choice to turn off TTS on the Kindle a pure issue of economics, or does it violate the civil rights of people with disabilities? This is at the core of the issue. Are we creating new rights for people with disabilities, or asserting rights they have under the laws of the land?
IANAL (I am not a lawyer), but I think that there is a decent chance that NFB and RRC might prevail on a lawsuit that the existing civil rights of blind and print disabled people are being violated. And, I think that authors would be economically better off if the TTS were left on for all books, but that's not a legal point, it's an opinion!