If you were vision-impaired, how easy would it be for you to get a readable copy of your favorite book, whether in Braille or in some accessible digital format?
Chances are that it would be quite difficult, partly due to insufficiently flexible copyright laws. It is infringement in many countries to make Braille or disabled-accessible digital copies of copyrighted works without permission from the copyright owner. These laws make access to copyrighted works much more difficult for the print-disabled than it is for others. There are two proposed methods of dealing with this problem on an international level: a binding treaty proposed by four countries last year, and the non-binding alternative agreement introduced by the U.S. on May 27th. Unfortunately, this non-binding agreement has several defects that make it an inadequate remedy. It does not require parties to have any standard limitations and exceptions to copyright, it discriminates between physical Braille copies and digital copies, and it only allows non-profit entities or government agencies to make disabled-accessible digital copies. Because of these features, the U.S. proposal fails to meet the needs of the visually disabled for equal access to copyrighted works.
Brazil, Ecuador, Mexico and Paraguay, in conjunction with the World Blind Union, have proposed a binding treaty that would require participating countries to take legal measures that would guarantee equal accessibility of copyrighted works to the print-disabled. The proposed treaty is available in English, French and Spanish here. The Treaty would create a firm exception to copyright law for creating accessible copies or making them available to the visually disabled, provided (1) that the person doing so has lawful access to a copy of the work, (2) that all changes introduced are necessary to make the work accessible to the visually impaired, (3) that the copies are supplied exclusively for the use of the visually impaired, and (4) that the creation or making available of the accessible copies is done on a not-for-profit basis.
As a response to this proposed treaty, the U.S. has made an alternative proposal of its own on May 27th at the WIPO Open-ended Consultations on Copyright Limitations and Exceptions for Persons with Print Disabilities and on the Protection of Audiovisual Performances. The U.S. calls its proposal, which is available at Knowledge Ecology International, a “consensus instrument.” It would allow member countries to export Braille copies of copyrighted works to each other, if those copies were made under the exporting country’s existing disability-based exceptions and limitations to copyright law. It would also allow for a member country to export digital copies of copyrighted works (again, made pursuant to its current exceptions and limitations) to a “trusted intermediary” in another member country. The “trusted intermediary” must be a governmental agency or a non-profit organization and must ensure that only bona fide print-disabled people can access the digital copy.
So how big are the differences between the proposed treaty and the “consensus instrument”?
First, the Consensus Instrument depends on the participating countries already having limitations and exceptions to copyright law. A member country that does not have any limitations or exceptions to copyright law cannot export Braille or digital copies. (Annex 2 of the Sullivan Report has a table showing which countries have which limitations and exceptions). Because it doesn’t create a duty to have any particular limitation or exception, the Consensus Instrument does not have any harmonizing effect on the laws of participating countries. It does not create any standard exceptions and limitations to copyright law that the print-disabled can rely upon within the member countries. Article 4 of the Treaty, by contrast, creates a binding obligation for parties to have such limitations and exceptions.
Another difference is that the Treaty does not discriminate between physical Braille copies and accessible digital copies, while the Consensus Instrument does. Perhaps this is due to a fear that it is too easy for people without disabilities to get hold of the digital copies. Nevertheless, indulging this fear would make it even harder for the print-disabled to enjoy the benefits of digital formats. Easy access to readable digital copies is even more important for those who cannot read most physical books than for those who can.
Furthermore, while the Treaty allows for-profit entities to create accessible digital copies or make them available, the Consensus Instrument does not. Since for-profit companies are a significant presence in the digital books market, they might play a large role in making more of those digital books accessible to the disabled—if they were allowed to. But, under the Consensus Instrument, they would not be. Imagine, for instance, if Amazon wanted to make disabled-accessible digital copies available on Kindles for no extra charge, or if for-profit e-booksellers did the same on their websites. These measures would greatly improve print-disabled people's access to copyrighted literature, but they would be forbidden under the Consensus Instrument.Additionally, the countries sponsoring the Treaty have responded to the Consensus Instrument with many criticisms of their own. Their response is available here.
While we at Public Knowledge do not want to discourage any move towards greater copyright flexibility on the part of the U.S., this Consensus Instrument falls short of what the visually disabled deserve. Supporting the Treaty would be a better move on the U.S.'s part than promoting an inadequate alternative.