Copyright treaty backing e-books for disabled readers survives US and EU resistance

A committee of the World Intellectual Property Organisation agreed on Friday "to continue without delay" its work on "facilitating the access of blind, visually-impaired and other reading-disabled persons to copyright-protected works."

At the heart of this work is a treaty proposed by the charitable organisation World Blind Union (WBU) and written with the help of the UK's Royal National Institute of Blind People (RNIB) .

RNIB campaign manager Dan Pescod attended the five-day meeting in Geneva. Pescod told OUT-LAW today that the UK and the US were among a group of countries that did not support the treaty and preferred 'soft options', though they stopped short of formally opposing it.

Around 95% of books are never published in any format other than standard print, according to the WBU. But visually impaired people need books in other formats, such as large print, Braille and audio. People with other disabilities, such as cognitive impairments, can also find themselves 'print disabled'.

"Imagine if you walked into a bookshop or library, and were told that you were only allowed to choose from five percent of the books on the shelf," said WBU president  Dr William Rowland in a speech last year. "What would such a limited choice do to your education, to your leisure reading opportunities?"

The WBU, RNIB and others have prepared a draft treaty that would relax copyright restrictions to allow the creation and supply of accessible books without the need for prior permission from the copyright owner. The treaty requires this generally to be done on a non-profit basis.

In some countries, it is already legal to create accessible books without permission. It was made legal in the UK by the Copyright (Visually Impaired Persons) Act, passed in 2002. But that law is limited in scope. The rights are limited to visually-impaired persons – so while a person with dyslexia might benefit from a large-print book, or an electronic book which can be played using text-to-speech conversion software, the law does not facilitate that person.

In addition, while the 2002 Act does not specifically prohibit distribution of accessible copies outside of the UK, it is generally accepted that the provisions would be interpreted to this effect. The RNIB, for example, commented that "the legislation is understood not to cover the export of material to other countries, nor its import".

The WBU treaty, if signed and ratified in its present form, would lift these restrictions. It seeks to protect all 'reading disabled' persons and it allows the supply across borders of accessible works, as a Braille hard copy or as an e-book. At present, a tiny fraction of books that are available in accessible formats can be supplied across borders because their export requires the agreement of rights holders.

Pescod said publishers have until recently seen little money to be made from converting books into accessible formats, meaning that the work is normally done by voluntary organisations like RNIB.

"If we make an accessible version of a book in the UK and want to send that to another English-speaking country where they don't have the resources to make books accessible, we should be able to do that," he said. "But the copyright law as it stands doesn't allow the transfer of that accessible info. The exceptions in place in national legislations stop at the border."

The preamble to the treaty notes that "90 percent of visually-impaired persons live in countries of low or moderate incomes." These countries tend to have the most limited ranges of accessible works, hence the need for a right to supply across borders.

Pescod said that voluntary organisations in Chile, Columbia, Mexico, Nicaragua and Uruguay have only 8,517 books in alternative formats between them. However, Argentina has 63,000 books and Spain 102,000. All these countries speak Spanish. Spain and Argentina will not share their libraries with their Latin American colleagues, though, for fear of breaking copyright laws, he said.

The proposed treaty would also allow for the circumvention of digital rights management (DRM) where necessary to render a work accessible. Some books are published in a digital format that is not compatible with the assistive technologies used by disabled people.

Lobbying for legislative change in the UK, the RNIB noted recently that DRM schemes "can react to assistive technology as if it were an illicit operation." It also said that "while e-book readers may have the facility to reproduce synthetic speech, the rights holder can apply a level of security which prevents this from working."

The WBU treaty would allow a company to buy an e-book, hack the DRM and redistribute a DRM-free version of the work, provided copies are supplied exclusively for disabled customers.

Pescod said that main objective of RNIB and the WBU for the week was to have the treaty formally proposed within the WIPO committee. Their second objective was to have it accepted as a viable proposal. "These were met," he said. "Brazil, Ecuador and Paraguay tabled the treaty as a proposal."

That put the treaty before WIPO's Standing Committee on Copyright and Related Rights. It was strongly supported by delegates representing South American, African and Asian countries. "India and China were particularly supportive," said Pescod. Wealthier countries, it seems, were less enthusiastic.

"Many publishers and rights holders and some states say we need a 'soft' solution," said Pescod. "RNIB should work with rights holders and others to resolve this, they say."

Pescod said these groups want a 'stakeholder platform' to discuss the sharing of files, but not a treaty. "We're more than happy to speak," he said. "But where we part company is that the stakeholder platform is looking at one set of solutions only." It would address some technical challenges, he said; but it would not address other issues, including the production of unprofitable Braille works, or the extra work needed to describe images.

"We're insisting that you need to work with rights holders – and we'll continue to do that – but we still need a treaty which would do three things: encourage national copyright exceptions for disabled people in all countries; allow transfer of accessible books in all countries; and allow tightening of rules on DRM systems that can block accessibility."

"No country opposed the proposal [for a treaty] outright," said Pescod. "Those who wanted to suggest that they weren't happy with it used more coded language, like saying discussions were 'premature' or that they wanted to take it back home and discuss it [at a national level]."

The published conclusions of the committee include the unattributed objection "that deliberations regarding any instrument would be premature."

"Those attacking this [treaty] fear it is going to undermine copyright law," he said. "We disagree completely. Ensuring access for a bunch of people who the market was not selling to in the first place doesn't undermine copyright law."

"This whole idea that it's 'premature' is bizarre," he said. "A WIPO and UNESCO working group looked at this in 1982. If that's premature, at what point does it become mature and ready to go?"

Pescod said that support for the stakeholder platform instead of a treaty is coming only from those who are not disabled. "They're not blind and they know better? I would question that," he said.

The UK was represented in two capacities: as a member of the European Union and as a member of the so-called 'Group B' countries, a WIPO term that refers to 17 EU member states, the US, Australia, Canada, Japan, New Zealand, Norway, Switzerland and the Vatican. Neither the EU nor Group B representatives supported the proposal. "Both are sceptical," said Pescod.

According to another meeting attendee, James Love of Knowledge Ecology International, a group that promotes access to knowledge, the opposition from the US and other high-income countries "is due to intense lobbying from a large group of publishers that oppose a 'paradigm shift', where treaties would protect consumer interests, rather than expand rights for copyright owners."

Ville Oksanen, a member of European digital rights group EDRi said Group B and the EU "did their best to derail the process of getting the treaty under serious consideration." He described the given reasons as "rather perplexing" and described them as excuses designed to avoid being seen as opposing help for disabled people.

"It remains to be seen how sceptical they will be next time," said Pescod. "At the end of the day, though, we are happy with the way things went."

On Friday night the WIPO copyright committee reached agreement to discuss the treaty at its next meeting in November, in spite of the objections. In the meantime, the committee's conclusions note that "Member States will continue to consult on these issues at national level and report on the activities and views on possible solutions."

James Love is confident that the treaty will make progress.

"Group B came in the May [copyright committee] meeting to block any agreement to discuss a treaty," he told OUT-LAW. "We'll be back in November, discussing a treaty. The members of Group B will not be able to consistently avoid dealing with the treaty proposal. They will have to say yes or no in terms of moving this forward, and to explain why."

"The core issue will be, what will it take to liberalize the cross-border movement of accessible works created under copyright limitations and exceptions?" said Love. "Given how harsh the access reality is for people who are blind or have other reading disabilities, Group B cannot long avoid addressing this topic. There will be more and more data, and fewer and fewer chances to claim strategic ignorance."