Thursday, June 24, 2010

Authorized Entities <> Trusted Intermediaries

A hot topic at the SCCR20/WIPO discussions in Geneva on global access to materials by the print disabilities is the term "Trusted Intermediaries"("TIs"). This was first introduced (to my knowledge) in the Stakeholder's Platform discussions, which were the quickly ginned-up alternative option created in response to the original introduction at WIPO of the Treaty for the Visually Impaired ("TVI") by Brazil, Ecuador and Paraguay (and now co-sponsored by Mexico).

The concept of TIs uses U.S. and similar copyright exceptions as a starting point. In the U.S. exception, Section 121, posted at Bookshare as the Chafee Amendment, the term is "authorized entities." In the statute:
"authorized entity" means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;
In this case, authorized means authorized under the statute.

This is a crucial point. Under U.S. (and as far as I know, most of the other exceptions) law, there is no approval or authorization by other entities, whether government, publishing industry or the disability consumer organizations. When you use the exception, you are asserting that your organization meets this qualification. And, if a copyright holder doubts that your organization meets the requirement in making an accessible copy, they are welcome to file a legal complaint of copyright infringement and make the case. But, the burden of proof is not on the nonprofit agency, it's on the copyright holder making the complaint. Just to be clear, IANAL, I am Not a Lawyer, so this is my layman's understanding.

I'm not aware of any litigation in the U.S. that has ever been filed on this point. Compare that to the fair use exception, which has plenty of case law. Why? It must be that the definition of authorized entity is sufficiently clear that no publisher wants to try this out in court against a nonprofit that is truly working to help people with disabilities.

The lack of a requirement for permission is fundamental to the concept of an exception: the idea that you would need permission of the rightsholders to utilize an exception from copyright is an oxymoron. Yet, this is the requirement of the European proposal for TIs here at WIPO! And, the U.S. proposal has similar (but not quite as out there) language saying that the organization using the exception has to have the trust of both the publishers and the consumer groups. A requirement that does not exist in the U.S. exception.

To be clear, there is at least one major publisher who publicly states their contempt for organizations such as Bookshare and RFB&D that utilize their materials under an exception. As long as we obey the law, they are unlikely to sue us. But, if we're trusted by most publishers but one complains, does one publisher's veto stop the operation of exceptions or import/export?

It's becoming increasingly clear that the term of "Trusted Intermediaries" is loaded with the issue of "trust" becoming a codeword for having received permission. In discussions with the advocacy community here, there's a strong desire to discard this term.

The U.S. term "authorized entity" carries some of this freight to non-U.S. audiences who assume that some other authority provided the authorization.

A term that was brainstormed by some of the other great minds here was "Responsible Entities," which I think is quite good. I believe it delivers on the concepts in U.S. law, and addresses the core concerns of the advocacy community while providing the publishers with more confidence that exceptions (and especially imports/exports beyond existing norms) will be done by NGOs and government agencies that are following laws and acting responsibly.

By the way, there are other requirements in these proposals that I'm not commented on. I'm solely focused on the requirements of a nonprofit organization/government agency needs to meet to be eligible to use the exception/norms.

I'm hopeful that by changing the term, and ditching the idea that Responsible Entities need to do more than meet the standards in the law to be able to take advantage of these copyright exceptions.

1 comment:

Bob Martinengo said...

Jim,

The earliest reference to 'trusted intermediaries' I could find is from the World Blind Union's General Assembly Resolutions from 2004:

"... This General Assembly also acknowledges that progress on copyright alone will not fully close the gap between the amount of material published and the proportion available in accessible formats.

It therefore calls on the table officers to:

6. Maintain continuing dialogue with the International Publishers Association and other rights holder bodies;

7. Actively support the development of "trusted intermediary" arrangements between publishers and agencies serving blind people to facilitate the wider and prompt availability of published books, newspapers and magazines in formats accessible to blind and partially sighted people. "

Here is the link:
http://www.worldblindunion.org/en/home6cbc.html?id=4&nivel=1