Blind advocates: Hollywood lobbying threatens deal for accessible books

For the last several years, negotiators at the World Intellectual Property Organization have been working on a copyright treaty that would make it easier for blind people to get accessible versions of books, like well-annotated audio books or large-print editions. But aggressive lobbying by the Motion Picture Association of America (MPAA), the Association of American Publishers (AAP), and other US copyright interests threatens to derail the negotiations, according to several advocates for the blind who spoke to Ars.

"The main sticking point has been whether to try to use the treaty as a vehicle for enhancing copyright protections or whether the treaty should remain clearly focused on carving out an exception to allow works to be produced in accessible formats for the blind," said Frederic Schroeder, a blind academic who has represented the National Federation of the Blind at recent negotiations. "We don't want this treaty to result in weaker copyright protection or strengthened copyright protection," he said. The blind community just wants easier access to books.

US rightsholders have other ideas. In a Wednesday phone interview, a spokesman for the AAP told us that any treaty that enhances access for blind people must be coupled with provisions that shore up the rights of copyright holders. His organization has also pushed for additional restrictions on when non-profit organizations would be allowed to produce accessible versions of books.

These groups have the ear of the Obama administration, and as a result the demands of rightsholders have dominated recent rounds of negotiations. Treaty advocates warn that fights over these provisions could put the entire treaty into jeopardy.

Spokespeople for the MPAA and the Obama administration declined to comment for this story.

Two steps forward, three steps back

In principle, the digital revolution should have dramatically improved blind peoples' access to the world's information. Converting old-fashioned paper books into accessible formats was an expensive and labor-intensive process. Not only do digital technologies such as text-to-speech make it easier to produce accessible editions of books, but the Internet also makes it easier to share accessible digitized versions of books across borders.

Unfortunately, copyright law often stands in the way. Legal restrictions on circumventing digital rights management (DRM) technologies can limit the accessibility of e-books. And in some countries, libraries and other non-profits must seek permission from the creator of each work before producing accessible versions of books in other formats. Getting permission is a laborious process that, in practice, means that only a small fraction of available works is ever converted into accessible formats.

Some countries do include copyright exceptions to help blind people. In the United States, the 1996 Chaffee Amendment allows nonprofits to produce accessible versions of books. But even in these countries it's still not legal to share accessible editions of books across international borders. Accessible books produced in the United States can't be shared with blind people in New Zealand or South Africa, for example. As a result it's especially hard for blind people in smaller countries to get books in accessible formats.

The pending WIPO treaty would change that. It has two core goals that everyone we talked to supports in principle: requiring countries to enact an exception for blind people similar to America's Chaffee Amendment and allowing nonprofit organizations that help blind people to share accessible works across international borders.

In 2011 the negotiations seemed to be proceeding smoothly. An early draft was just six pages long and negotiators seemed to close to reaching a consensus. But then major copyright holders raised concerns about a provision of that draft that could be interpreted as conflicting with a legal principle beloved by content companies called the "three-step test." In a nutshell the three-step test says that exceptions and limitations to copyright protection shouldn't unduly interfere with the right of copyright holders to make money from their works.

"There are some countries that have not signed on to the various international instruments and don't necessarily recognize the three-step test as the overarching principle," Frederic Schroeder told us. "And so from the standpoint of blind people, we want to say whatever a country is bound to currently as far as copyright protections, we don't want those to change."

But to Schroeder's exasperation, the three-step test turned into a major focus of treaty negotiations.

"We tried to paraphrase the three-step test to try to make the rights holders happy, without alienating the people who didn't want the three-step test included," Schroeder told us. "The rightsholders said 'that's not good enough. That compromise language could be used to weaken the three-step test.' Other countries said 'we're not going to accept the three-step test being imposed in this treaty.'"

According to Schroeder, almost the entirety of a five-day negotiating in February was focused on this issue, leaving no time to discuss other provisions.

Commercial availability

Schroeder told us that the next negotiating session, held in April, focused on another priority of rightsholders: prohibiting the creation of additional accessible copies if an accessible version of a work is already "commercially available." In other words, if Barnes & Noble was selling an audio version of a book, a library could be barred from creating a text or audio file of the same book to serve its blind patrons.

That sounds reasonable in principle, but Chris Danielsen of the National Federation of the Blind warned that the requirement could hamper the production of accessible works. "If I'm a small nonprofit and I can't produce something in an accessible form that's commercially available, how do I know if it's commercially available? There's no uniform way of checking," he said.

He argued that not all accessible works are created equal. For example, an audiobook is more accessible than a traditional paper book. But to be truly accessible, an audiobook needs to be annotated with chapter and section headings for efficient navigation. Most audiobooks don't come with those annotations out of the box.

"I would argue a work is not accessible unless it's got the navigational features I need," Danielsen said. "That's where it starts getting complicated. Am I going to be afraid to take an audio file and mark it up for fear of violating the commercial availability requirement?"

Compatibility problems could also create headaches, blind advocates say. For example, an accessible version of a work may only be "commercially available" on Apple's iOS-only iBooks store. They argue it's unreasonable to expect blind readers to buy an iPad just to get access to a particular work.

But Allan Adler, general counsel for the Association of American Publishers, told us that the commercial availability requirement is needed to create a market for accessible works. He noted that blind groups themselves have said that their first choice would be to purchase accessible works in the commercial marketplace. Without a commercial availability requirement, he warned, commercial publishers would have little incentive to introduce accessible works to the market.

"We're trying to make sure the incentives for producers of those works to build in accessibility aren't disincentivized by a regulatory scheme that says if you're a disabled person you get the works free,'" he said.

Schroeder disagreed with that analysis. The non-profit organizations creating accessible works for blind people have extremely limited resources, he said, and creating accessible versions of books isn't cheap. So if a work is already available in the commercial marketplace, "there's no motivation to use limited money to produce it over again" just to save the modest cost of a commercial copy. In Schroeder's view, the commercial availability requirement would just create additional legal headaches for libraries without enhancing the market for accessible works.

Hollywood throws its weight around

Treaty advocates told us that the Motion Picture Association of America has become increasingly active in the negotiations in recent months, pushing for changes similar to those sought by the AAP. Negotiators had already excluded audiovisual works from the treaty to placate the movie studios. But to the frustration of treaty advocates, Hollywood has gotten involved in the negotiations anyway.

"The motion picture lobby have waded into this debate at a high political level," said Dan Pescod of the Royal National Institute of Blind People in the United Kingdom. They've been "talking to people in Congress and elsewhere and encouraging them to block the treaty or put in a whole lot of references to other treaties or other clauses that have the effect of making the treaty very difficult to follow and potentially unworkable for people to follow."

As a result, the treaty has ballooned to 22 pages. "It's a monster. It has something like 80 bits of square bracketed text, indicating bits of text that are still not agreed by the negotiators."