During these last two weeks of June, delegates to the World Intellectual Property Organization (WIPO) are meeting in Marrakesh, Morocco, to negotiate around a proposed treaty on Limitations and Exceptions for Visually Impaired Persons. The treaty, which was first proposed in 2008 by Brazil, Ecuador, and Paraguay, has been the subject of debate for five years, and the Marrakesh meeting is being billed as the final push to get an agreement on a treaty. The purpose of such a treaty would be to require, insofar as the WIPO can require its member nations to act, that each country adopt consistent limitations and exceptions into their copyright laws to allow that copies of copyrighted materials that are compatible with assistive software can lawfully be made to help people with visual disabilities read and otherwise enjoy the products of culture. Such an exception would be very limited, and it would serve a very laudable purpose. So it is fair to ask why it has taken so long, seen several reversals on the part of the U.S. administration, and remains controversial going in to the Marrakesh meeting. The ironic reality is that there in the Moroccan desert, WIPO delegates are arguing over the camel’s nose.

This Treaty is Exceptional

To explain the controversy, we start with the fact that the WIPO develops and administers the international legal framework for intellectual property. That framework is built around treaties that outline the ways in which the copyright laws (among others) of all the member nations should be harmonized. Up until now, the harmonization has always been around rights, and little has been said about limitations and exceptions. International treaties dictate the minimum term of copyright protection (life of the author plus 50 years), the rights that such laws must protect, the prohibition on requiring rights holders to comply with formalities, and other matters that ensure consistent rights and enforcement of those rights. But there are no required exceptions; each nation is left on its own to craft whatever exceptions it needs, although the treaties have some (unhelpful and frequently ignored) language about what those exceptions should look like. Of course, consistency around the rules for copying to make works accessible to the blind and visually disabled would be very beneficial; a patchwork of different approaches make services for such people very difficult. Library communities around the world uniformly support such consistency. But many rights holders groups are afraid that a treaty on ANY exception will be the camel’s nose, the first step toward letting the whole camel into the tent. They are afraid that ANY exception will start a trend, and so they are taking a stand against helping blind people. Here is a quote from the Intellectual Property Owners Association about why they oppose the treaty for the blind: “…we are concerned about the VIP treaty as currently drafted, focused exclusively on L/Es [limitations and exceptions] and not on the rights holders whose copyrights are at stake. We are also concerned about the potentially negative, precedential effect that a one-sided, exceptions focused VIP treaty may have on parallel developments at WIPO and in other international negotiations.” In short, if we let the blind people have services to help them read, other people might get the idea. Alan Adler of the Association of American Publishers is even more blunt; he says he simply doesn’t trust developing nations to use an exception for the visually impaired responsibly. So in order to avoid a copyright Armageddon, we are being told by these rights holders’ groups, all international treaties on limitations and exceptions must be resisted, even when they serve the most obvious and public-spirited purpose.

Balancing Berne

One of the ironies here is that the opponents of this treaty talk about balance, and call the treaty “one-sided.” But it is the current international regime that is one-sided and unbalanced. For over a century, the Berne Convention and other treaties have focused exclusively on strengthening the exclusive rights in copyright and requiring ever more stringent enforcement of those rights. There has never been a single treaty that gave its attention to the rights of users, even though those users are the other side of that “balance” that intellectual property laws are intended to create. This treaty, if it is the thin end of any wedge, is the beginning of a push toward establishing internationally the balanced purpose which all intellectual property laws are intended to serve. The most disturbing part of this debate is that the Obama administration does not seem to know which side it should be on. The President speaks frequently about the importance of reading and education, but his delegates seem uncertain about whether supporting a copyright exception to help the visually impaired is a good idea or a bad one. The administration initially opposed the treaty, at the behest of the rights holder groups, especially in the entertainment industry, to which it was indebted for so many campaign contributions. Then, as the memory of the election receded, the administration announced support for this particular treaty in 2009. Now, however, representatives who will be negotiating in Morocco are unwilling to repeat that support. The difference seems to have been made by a letter from the Intellectual Property Owners Association, written by a lawyer for Exxon, of all things, from which the quote above is taken, and which is described in this blog post by the American Library Association (ALA)’s Carrie Russell. So now we are again trying to push the administration back to what it says are its basic values about the value of education, reading, and library services. There is a We the People petition asking the White House to reaffirm its support for the treaty on access for the visually disabled, and only a few days left to sign that petition. If the U.S negotiators can be convinced to again support the treaty, this ludicrous argument can perhaps be resolved. In a recent interview, another lobbyist for one-sided copyright protection, former Senator, and now president of the Motion Picture Association of America (MPAA), Chris Dodd, wrote an editorial for the Huffington Post in which he outlined five principles that the MPAA believes should guide copyright reform. They are a wonderful example of the doublespeak by which these rights-holder industries claim to care about blind people while opposing any effort to make it easier for those people to experience the products of culture. He says, for example, that copyright should promote creativity and benefit consumers. Each of those statements, however, is followed by the assertion that the way to accomplish those goals is to give more money to the MPAA. He wants an Internet that “works for everyone,” but explains that by asserting that we must create modern protections for rights holders. Presumably he means protections like those contained in the Digital Millennium Copyright Act (DMCA), which, by the way, are also mandated by international treatises. So, once again, we see an approach that asserts a desire for fairness and balance, but really presses for a one-sided regime in which only the major companies that own commercialized intellectual property actually benefit; the goal of the law, in this perspective, is to keep users and independent creators out of the market, except as a source of revenue. A lot is riding on the meeting in Morocco. By its end, we could see the beginning of a new era in which users’ needs are balanced with exclusive rights in a more responsible way. If the treaty is approved, the visually impaired will benefit, libraries will be more able to provide basic services, and copyright will look a little more like the balance for the public interest that it is intended to be. If it fails, however, we will have corporate doublespeak and a weak-willed Administration to blame.