Organized by Knowledge Ecology International (KEI)
Persons who are blind, have limited vision, have dyslexia, or other disabilities face considerable challenges in access to books and other documents. New information technologies have provided expanded opportunities for presenting information in formats that are much more accessible, such as refreshable Braille, large type, synthetic speech, or in other formats that expand access.
Many countries provide some exceptions to copyright, so that protected works can be published in accessible formats, without permissions from copyright owners. WIPO is considering a new treaty that would set global minimum standards for such limitations and exceptions, and provide for the cross-border import and export of formats of works created under such exceptions. This panel will discuss the proposal for a WIPO treaty for disabilities, as well as other topics concerning the right to read for persons with disabilities.
The panelists included:
As Ress recounts, in 2008, Knowledge Ecology International convened a meeting in Washington, D.C. to draft certain limitations and exceptions to the WIPO Treaty for copyright law, exceptions that would allow the development of accessible reading formats for people who have disabilities that affect their ability to read, hold, or comprehend books or visual text. These accessible reading formats include braille and audio alternatives to text, as well as newer technologies, such as portable reading devices, capacitive touch technologies, and text formats that can be searched and navigated by a screen-reader.
Ress cited the astonishing (but rather conservative) estimate that fewer than 3-5% of published texts are currently accessible to people with visual impairments in developed countries. The estimate for lesser developed countries is less than 1%-2%. Against this starkly unjust reality, WIPO is considering a new treaty that would set global minimum standards for copyright limitations and exceptions, and would provide for the cross-border import and export of formats of works created under such exceptions.
Next, Marc Maurer discussed the fundamental basis in civil rights for access to intellectual property. He also outlined some of the steps necessary to achieve full accessibility. Maurer, quoting Stephen Jay Gould, started with the premise that “a mind is a terrible thing to waste.” To Maurer, the point of an education is not the passive transfer of knowledge from teacher to student, but the transformative power of knowledge – changing the uninformed into the informed, stimulating and piquing the curiosity of minds that were once untouched. Maurer recalled the excitement and joy of opening a book, a rich experience that many take for granted. He believed that if those who control IP can be brought to understand that the blind might create and contribute to society, they would make access to information a higher priority.
To that end, the National Federation for the Blind has been working to catch up to the potential of the digital age. Many generations of computer technology have passed since the days of Braille. Maurer maintained, however, that information does not have to be intrinsically inaccessible; computer representations, often visual, can be communicated in other ways. Early computers, for example, had no screens; instead, their input and output were contained on punch cards. Today, information from new technologies are inaccessible only because they are built that way, but new changes in technology and the law can potentially pave the way for greater accessibility.
For example, the National Federation of the Blind is working with Ray Kurzweil to develop new e-reader software that will make e-books fully accessible to the blind. The “Blio” debuted as one of the most exciting new technologies at the 2010 Consumer Electronics Show in Las Vegas, and will be released for free public use in the next few weeks, offering access to several million books shortly after its release.
In addition, the Google Books settlement with the Authors Guild will include equal access for individuals who are blind or print-disabled. Such changes will not only benefit people with disabilities, but will increase the market share of publishers by reaching the fifteen to thirty million people who are print-disabled some or all of the time.
Finally, in the mid-1990s, disability advocates were able to negotiate with American publishers to make books more readily available for the blind through an amendment to the Copyright Act. Known as the Chafee Amendment, these exceptions have offered a template and starting point for the international negotiations between the World Blind Union and WIPO.
Maurer concluded by restating that the right to read is a civil right. Though some people may regard accessibility as a charitable provision for giving IP to a small and negligible market, Maurer maintains that it is essential for equity, not charity. To Maurer, access to IP is a civil right. Only full accessibility can give the world a justifiable claim to “demand more of the blind” – to give people with disabilities the opportunity to not just be consumers, but producers of new knowledge and IP.
Daniel Gervais started with an allegory about monopolies and compulsory licensing in the area of patent rights. He asked the audience to imagine a desert-dweller who invents a water machine. This invention makes its inventor very, very rich. In fact, it generates so much money and commercial activity that the owner has to build a wall around his oasis. The owner could depend on patent law to bestow upon him exclusive rights to the water machine, preventing third parties from forcing him to give water to the thirsty or from telling him how much he can charge for the water. Patent law would also prevent people outside the wall from building their own machine. The water machine in this analogy is essential medicines.
Though patent law may seem tangential to a discussion about copyrights, it is actually very relevant. In 1995, the TRIPS agreement annexed all intellectual property under the WTO agreement. Though the negotiations took over two years, developing countries were able to win some concessions to make essential medicines available to more “people outside the wall.” The World Trade Organization (WTO) created an agreement not to impose an obligation on patent holders to make essential medicines available, in exchange for third-party licensing agreements that would bring those medicines to more people. The successes of developing countries in getting these compulsory license concessions provide many useful lessons for advocates of access to knowledge. The bloc of developing countries in the WTO were able to oppose one right against another – the right to health against the right to a patent monopoly. In this way, non-IP principles from the world of human rights can and should guide our discussions about rights to IP.
Gervais claims that normatively, access to IP for people with disabilities is a “no-brainer.” It is supported by the same general principles underlying the right to education, the right to enjoy the benefits of scientific progress, and the right to take part in cultural life. But according to Gervais, what makes access for people with disabilities difficult is that it is the first treaty of its kind to impose a limitation on copyright. Copyright lobbyists fear that exceptions to copyright for people with disabilities would set precedent that could open the floodgates to other copyright exceptions.
Gervais concluded by describing the current hurdles to a copyright exception in the WIPO treaty. First, advocates must understand that a treaty will take time. The issues are complex, and the copyright stakeholders believe they have vast economic interests. Second, advocates must be prepared for the possibility that the United States Senate may not ratify the treaty. In the past, the United States has had a history of pushing for the passage of a treaty, only to retreat once the treaties were adopted (see case studies for the semiconductor chip protections and the Film Register Treaty). The reading rights coalition needs to be able to sustain an effort through the entire ratification process.
Eric Bridges discussed the challenges that people with visual disabilities face in getting access to knowledge and emphasized the ramifications that such injustice has on education and global employment. To Eric, access to books means access to an education, which can lead to greater employment options for the 161 million people worldwide who are blind or visually impaired. Passage of the WIPO treaty is critical to giving people with disabilities the tools they need to live more fulfilled and independent lives, as well as the power to advocate for their own economic well-being and political rights.
To illustrate his point, Eric gives an example from his own experience. In the United States, students with visual impairments must contact a professor by email or telephone ahead of time to figure out what books will be needed for their upcoming courses. Most professors, however, do not establish their syllabi until three or four days before classes start. That gives little time for blind students to get their texts in an accessible format, putting them behind in their classes and requiring them to play catch up for the rest of the semester. Passage of the WIPO treaty proposals would mean greater flexibility for creating affordable accessible works at the same time as publication in standard formats, a standard that can be summed up as, “same book, same time, same price.”
Recently, the U.S. government shifted its position regarding the WIPO treaty proposal, saying they are not categorically against such a treaty and will, instead, consider supporting the proposal. Eric, speaking on behalf of the American Council of the Blind, said he is grateful for the shift and hopes it will give the WIPO more leverage in creating a lasting and enforceable solution.
Why do we need a treaty mandating exceptions to copyright? Luis Villoreal maintains that copyright exceptions are critical to the effective and efficient transfer of accessible materials between countries.
Villoreal believes that copyright law does not bestow an absolute right on copyright owners; rather, copyrights were always meant to divide rights between “people who own the water and those who need the water.” In exchange for a time-limited protection of their works, copyright law provides exceptions to the right of the owner in order to allow others to use their works. Nonetheless, such exceptions vary from nation to nation, and no single international treaty uniformly outlines the exceptions. Thus, works available for the blind in Chile will not necessarily be compatible with works in Argentina, preventing the transfer of accessible works from one country to another. These hurdles to cross-border transfers not only leads to inequitable outcomes among countries, but it also creates an inefficient system. For example, in Nicaragua, the library for blind readers has only a few hundred books, but it cannot receive accessible books in Spanish from Spain, which has a much larger library, because the scope of copyright exceptions in Nicaragua is much narrower.
The lack of exceptions also affects the development and spread of technologies for people with disabilities. Villoreal says that we have to consider that this problem is not only affecting developing countries, it is also hurting developed countries, like the United States, where blind readers cannot access works from other countries because these other countries are not producing accessible works. If the WIPO treaty can require mandatory exceptions, then blind users in the United States can benefit from the production of new works. Moreover, developing countries that currently give generous exceptions can be shielded from the threat of economic sanctions (for giving such broad exceptions) under a more uniform international treaty.
Finally, Villoreal believes that such exceptions must be included in a treaty, which has the force of the international community behind it, rather than joint declarations or other “softer” laws that are not as mandatory or enforceable.
David Hammerstein, our final panelist, discussed the role of the European Union in the WIPO debates. Unlike the United States, which said it would study the treaty, the European Union is publicly against any treaty. Hammerstein remembered being present when the United States expressed its new position in favor of considering the treaty. Many people were quite moved, and the room swelled with emotion. However, the delegation from the European Union had the opposite reaction: complete shock. As the largest hold-outs on the treaty, Hammerstein believed the E.U. did not want to be seen as the “obstructionists, the bad guys.” Nonetheless, the E.U. continued to hold a fundamentalist approach to IP.
Hammerstein argued that such a “one size fits all” approach to copyright law produces great injustices; he urged an application of the law on the side of common sense. He told a story of a blind Indian woman whose father used to stay up until three o'clock in the morning every night for fifteen years reading books to her so she could get excel in primary school, secondary school, and college. Shortly after she graduated, her father passed away. The woman never saw a properly formatted book her entire life, despite their availability outside India.
According to Hammerstein, the E.U.'s extremist approach is based on unsubstantiated fears that allowing exceptions for the blind – no matter how equitable – would leave a dangerous crack in the door for other exceptions to come in. Instead, the E.U.'s official justification for holding out is because it wishes to harmonize copyright laws within the E.U. first – a process that could take anywhere from five to ten years – before agreeing to international exceptions. In the meantime, the E.U. feels its proposal to make orphan works available is sufficient. (Orphan works are works that are out-of-print and/or works for which copyright ownership could not be established). To Hammerstein, such a miniscule effort is patronizing – it assumes that blind readers do not want access to the most recent books, that they would be happy to read only books from the attic. The effort, explains Hammerstein, is really a diversionary tactic to take the focus off the real goal – full copyright exceptions for the reading impaired.
Audience Question and Answer Session:
Marc Maurer: The blind community is made of people who are inherently contributors. I am tired of a charitable model that says, “sure we will give you something, when we are done dealing with the important people." I want to be one of the important people to begin with. And that means I have a right to get at what you are selling, not just when you are done dealing with everyone else and you don't have anything else on your plate to worry about.
There are many different kinds of accessibility, and we have worked on standards that make it practical to have accessibility for all the print-disabled people. We were brought to this recognition that there were other print-disabled people other than blind people, but we didn't know how big this market was until we started dealing with the Amazon Kindle controversy where we urged that Amazon maintain its text-to-speech feature. They did build this into their Kindle, but (under pressure from the Authors Guild) they put controls so blind people could not use it. We have been after them to make their machines accessible for some time. We have done this with a number of companies. As you may know the iPad has just been announced. It has voice-over built into it. Although it is a flat screen, you can use a text-to-speech program to get at the information on the iPad. I don't have an iPad, but you can count on it, I will. As soon as they sell it to the regular folks, I will be one of those regular folks.
We have always defined accessibility functionally, which is same price, same ease of use, same access to information. We define it functionally because we are not trying to tell all the technology vendors how to build their technology. All we want to do is have a standard that says that if sighted people can understand it, then blind people should have the same capacity to understand it. We also don't say that you have to make the Mona Lisa hearable, so we don't say you have to provide what is essentially visual information in non-visual ways, but we do say that those things that are visual have to be tagged so we know what they are.
Question: Is there any place for an argument that blind groups who have access should be able to exchange works across borders, that there should be a standard for transporting information across borders and for creating works from one format into another format.
Marc Maurer: There should be a standard established for transporting works across borders and for creating works from one format to another format so that those who can't see them can still understand the intellectual property that is there. I think that if there is not a standard, then a default standard will be created by those who need access to the information. And I think the technology is expanding fast enough that some of the bright technology people will cause it to happen whether a standard is adopted or not. In other words, I think if we work with intellectual property owners, we'll have a chance to get at this water we're talking about together and protect the property rights of intellectual property owners at the same time. If we are stiff armed enough, then access to this IP will happen, although people have to sneak around to do it. And the more sneaking around we have to do, the more IP will leak out of the well.
Manon Ress: There is an argument used against the treaty that one can imagine a bunch of blind people hacking into files and sending files to each other under the radar. But actually, I think that the blind community is very much respectful of copyright. It's a legal community, not a bunch of hackers.
Marc Mauer: The Chafee Amendment was passed in 1997, and I only know of one example of when when there was an effort to distribute throughout the world, unauthorized IP. I'm not saying I know them all, but I know of only one. I think you're right. This is a respectful community.
Manon Ress: And there's also Bookshare.org which is basically a P2P technology, but it's legit. There are publishers just waiting to find evidence that there is piracy on this system, and believe me if there was piracy they would find it. They are just waiting like hawks for one file to escape through the seven layers of DRM on Bookshare. This says something about this “lack of security.”
Eric Bridges: And there are around 70K titles available on Bookshare.org.
Question: Is there a potential for an allegiance between the blind community and the creative commons. Can creative commons help get more information accessible in all formats for blind people? Have they played a role?
Manon Ress: Not that I know of, but its a good idea. For example, it would be great if creative commons people can say, “Hey, if you save in Daisy format, it's searchable. Daisy format allows blind people to read like other people – it allows them to go back, to search text, read footnotes inline, etc.” All of these features can only be done in Daisy format right now. So it's true that other organizations can help us get people to save on Daisy format.
Marc Maurer: Daisy format is an internationally created format which takes a text and makes an audible version of the text and synchronizes it with a print version so that you can -- in the most feature rich version of it -- ask it to spell a word that you just heard.
Manon Ress: You can search, mark. You can basically do what we can do when we have a book.
Question: It would be interesting if you could get a wide amount of work on creative commons converted to accessible works.
Manon Ress: I think bookshare already does that. I don't know if they are actively seeking creative commons works, but we can find out.
Question: What can supporters of your cause do to help?
Manon Ress: Writing an editorial, disseminating information about the treaty is great. People who want to help can get in touch with us and help in the ways they are able. We need some press on this treaty.
Marc Maurer: Every year, the NFB sponsor a symposium, will be putting the Assistant Attorney General for civil rights on the spot about this issue this year. Join us!
Luis Villarroel: Helpful to think about arguments to right-holders to help them realize that this treaty will be good for them. It will help reinforce protection of the right. The market argument may not be persuasive around the world because of economic issues. People should also be in touch with their IP offices and people with social power inside their countries to make sure they know that this fight is going on. Shouldn't be obscure. There is a very real proposal right now, an incredible opportunity to make this go further.
For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Saturday, February 13 at 19:00h to 20:30h.
For video of this panel, please click here.
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