“Who on earth would oppose a treaty to facilitate access to information and knowledge to people with reading disabilities?”

I am often asked “who on earth would oppose a treaty to facilitate access to information and knowledge to people with reading disabilities?” Please read my selected quotes from the comments posted today on the Copyright office page here. But I would also like to highlight some really positive and supporting comments about the treaty. There are more of them than the negative ones but do they have the same weight?
And please note that the Reply to comments are due December 4, 2009
Here is my quick glance at the comments. Out of 19 comments, these 4 are (not surprisingly) the most negative:

Jule Sigall and Laura Ruby, Microsoft Corporation :

“Microsoft has not yet formed a position on the proposal or its specific provisions, we offer these observations about the underlying copyright issues from our experience in making copyrighted works accessible to those with disabilities. […] First, as the NOI and the roundtable discussions from May indicate, copyright law exceptions for people who are blind are not the only issue that affects how accessible books can be made more readily available[…]a witness for the motion picture industry demonstrated technology that they are developing voluntarily to make audiovisual works more accessible to the visually impaired. That activity is occurring without any explicit exemption in U.S. copyright law.”

FYI: The witness mentioned by Jule Sigall is Fritz Attaway (MPAA) who explained after showing a video at the May 2009 consultation the great job they’ve done on movie descriptions for blind people. Jule Sigall should have been there, I do not think anyone was impressed by the MPAA demonstration! It had to be embarrassing.

Then you can read pages after pages of examples of problems or solutions not linked to a treaty.

AACP, CMLA, DTLA, DVDCCA, and 4C Entity:

“Second, while these groups take no general position on the need for any new international agreement in this area, each group strongly urges the United States to ensure that if any new international agreement is supported or adopted with regard to the issues in the Notice, any such instrument does not include any requirement that domestic laws create one or more new exemptions to permit circumvention of effective technological protection measures for the purpose of enabling access to and enjoyment of copyrighted works protected by such measures. The technological protection measures licensed by the undersigned groups have worked, individually and in combination, to allow hundreds of millions of consumers – including consumers with various disabilities – to enjoy audiovisual and other copyrighted content in new digital forms and over home networks”

Keith Kupferschmid, Software and Information Industry Association:

“The bilateral approach of mutual cooperation working within the marketplace is the best way to develop the technological solutions to the specific issues related to facilitating access to copyrighted works for the blind and visually impaired”

and he continues with “It would be premature and counter-productive”… “premature and counter-productive”? asked people who have been waiting since 1985 when UNESCO and WIPO recommended an international instrument!

Steven J. Metalitz, AAP, IFTA, MPAA, NMPA, and RIAA:

“The signatory organizations urge the U.S. Government to oppose consideration of this draft treaty by the SCCR, and to encourage other WIPO Member States to do so as well. We strongly endorse and support reasonable efforts to increase the practical and functional access of blind and visually impaired persons to works protected by copyright. But among the strategies least likely to advance the goal of increased access by the blind and visually impaired is the path down which the draft treaty points: to begin to dismantle the existing global treaty structure of copyright law, through the adoption of an international instrument at odds with existing, longstanding and well-settled norms.”

I was of course more surprised and disappointed to read someone from the National Public Radio following comments:

“As both a user and a creator of copyrighted works, NPR appreciates the important social benefits associated with protecting copyrighted works and facilitating access to such works for print- and other sensory-disabled persons. We also recognize the difficulty of achieving an appropriate balance between the two, especially in the context of a proposed international treaty to create a categorical exception to copyright protection crossing a wide range of national legal systems. Indeed, it may be that access is better facilitated through private and other non-legal means, or by seeking changes at the national level, but we encourage the U.S. Delegation to maintain an open approach. Exempting uses of copyrighted works to facilitate access to such works requires careful consideration, but it need not impair the reasonable interests and expectations of copyright owners, and it is an objective of profound importance.”

But this is pretty much it for the “interesting negative”.

Then you have the (good) comments and (serious) analysis in support of a treaty. One academic stands out for his thorough analysis. Dr. Daniel Gervais, (Vanderbilt University Law School) who supports “the development of an international framework to facilitate the production of copies or versions of copyrighted works for access by the Blind and Other Persons with Disabilities. He provides an excellent anaysis of the proposal and discusses how “the treaty proposal under consideration would interact with the international obligations of the United States, and the benefits or concerns would the treaty proposal create, and other possible courses of action that would facilitate access by blind, visually impaired, and other reading disabled persons”. A must read.

The comments by the the Library Copyright Alliance (LCA), the Electronic Frontier Foundation (EFF), and the Chief Officers of State Library Agencies (COSLA) examine article by article the proposal by Brazil, Ecuador and Paraguay. And answer any questions you may have about whether it is possible and how to implement such a treaty in the US.

They conclude that:

“The treaty proposal would expand access to works in three ways. The audience for accessible copies would expand to include all of the reading impaired, such as those persons who have physical disabilities that prevent them from using a book.”

“The treaty proposal would apply to all categories of works, expanding the range of creative works available. Lastly, the treaty proposal would expand the types of accessible copies beyond “specialized formats.” These expansions are required if the visually impaired are to enjoy the same levels of access as sighted persons[…]If the treaty proposal were endorsed by WIPO member nations, WIPO would gain great credibility by following through on its commitment to balance intellectual property law to address the rights of users of information as well as the interests of rights holders. Such support action would align with the actions of the United Nations to pursue legislative measures necessary to implement the Convention on the Rights of Persons with Disabilities, recently signed by the United States. Lastly, the treaty proposal includes the option for commercial entities that provide accessible copies the assurance that they will be compensated through a compulsory license scheme, perhaps encouraging newcomers into the market and encouraging rights holders to sell accessible copies.”

Also a must read!

The comments by James R. Fruchterman, CEO of Benetech a leading Silicon Valley technology nonprofit and operator of the Bookshare online library for people with print disabilities are also extremely clear. Here’s the executive summary:

2. The main benefit of this treaty will be to extend the benefits of the enlightened approach demonstrated by the United States in adopting the Section 121 exemption, to all people with print disabilities worldwide, through setting global norms around disability access. We think the benefits to society will be especially notable in less developed countries.
3. A secondary benefit of the treaty will be to increase cross-border access and cooperation around accessible materials, reducing the need for duplicative and expensive work. Cross-border importation might well represent the majority of accessible works made available to people with disabilities in many developing countries.
4. The publishing industry consistently fails to make accessible materials available for sale, even when it’s possible and there’s a high degree of willingness on the part of people with disabilities and schools to pay for such materials. The recent Amazon/Authors Guild dispute has pointed out to people with disabilities how dangerous it is when their civil rights are easily trampled via assertion of contractual rights, when authors demanded the silencing of the read-aloud function on the Amazon Kindle and this function was disabled within a month.

And here is George Kerscher (DAISY Consortium) direct reply to the questions about “What benefits or concerns would the treaty proposal create?”:

A. The treaty would have immediate benefit to persons with print disabilities, because organizations producing materials in foreign countries could share this content through the existing authorized entities in the USA.
B. The treaty would have immediate benefit to authorized entities in the USA, because they could share content in other countries and collect modest fees for the provision of these materials. These modest fees should help offset the costs of production. It is expected that the organizations in the USA would be a net exporter.
C. Persons in the U.S. come from a variety of language backgrounds. Having materials from other countries and in multiple languages would enrich the lives of people in the USA.

And of course for more stakeholder supporting comments, you should also read the comments by the American Council of the Blind (ACB) and the American Foundation for the Blind (AFB),the International Center for Disability Resources on the Internet (ICDRI), the Association on Higher Education And Disability (AHEAD), the New York Branch of the International Dyslexia Association, Lighthouse International, the Recording for the Blind & Dyslexic, the California Braille and Talking Book Library, and Knowledge Ecology International.