Slippery slopes

A 2008 study by the Center for Disease Control found that over 3.4 million Americans are visually impaired; of those, 1.3 million are legally blind. Fortunately, under U.S. copyright law, third parties may reproduce a work in "specialized formats" – Braille, large print, audio books and digital texts – to be used exclusively by those whose vision is impaired.

Over the last four years, Brazil, Ecuador and Paraguay have led an international effort to extend this exception to countries other than the United States. For much of that time, the Obama administration supported the proposal, which would potentially make textual works available to an estimated 37 million visually impaired people around the globe.

You would think that markets of millions might interest book publishers, but the copyright exception exists largely because publishers have walked away from an opportunity to serve blind populations. In place of commercially produced editions, nonprofit entities like Benetech have stepped in to make books available in these specialized formats. Bookshare, the Benetech initiative, has digitized 193,000 titles, offering them in a mix of Braille, large-text and audio formats.

So it's curious, at least, that the U.S. Patent and Trademark Office appears to be softening its support for a worldwide exception for the blind. The argument: if we let an international treaty grant even this one exception, we risk pressure for more exceptions down the road. Worse, we open the door to worldwide adoption of U.S. standards for "fair use".

Yesterday, David Kravets of Wired posted an effective roundup of views on both sides of the proposed treaty. The Intellectual Property Owners Association says the changes "threaten to upset the fundamental balance on which our U.S. and global IP system is based." The MPAA fears "the exportation of U.S. fair use standards to other countries." 

Allan Adler, general counsel and vice president, government affairs for the The Association of American Publishers (AAP), argues that book publishers need even more protections before the blind can be served. These include:

  • A promise that if a publisher enters a market with its own version of a work for the blind, all other versions would be withdrawn
  • A guarantee that the World Intellectual Property Organization will build a database that advises the public on where commerical versions can be obtained
  • Greater accountability on who gets to produce derivative works for the blind
  • Agreement on where infringment (what the AAP calls piracy) will be adjudicated

While part of this is politics – "solve all my problems before I solve one of yours" – it's not hard to see what is going on here. Commercial hegemony lowers risk for the original publisher.

Bookshare, for example, or a local publisher would take on the cost and risk of making and marketing a title for the blind. If it sells, the original publisher could trump the work done by others and pick up found money. If it doesn't sell well, the costs accrue to the third party.

As Jim Fruchterman, Benetech's founder, told Kravets:

Our IP industries do not want the rest of the globe to have things like fair use and copyright exemptions. It’s a loosening of the control of intellectual property. Anything that helps poor people on IP is a threat.

Those defending the status quo argue that the changes represent a kind of slippery slope, eroding protections and threatening world order. It's hard to understand how fair use, prevalent in the single largest book market in the world, threatens the future of book publishing. I see a different kind of slippery slope, one that undermines why we came to work in publishing in the first place.

About Brian O'Leary

Founder and principal of Magellan Media Consulting, Brian O’Leary helps enterprises with media and publishing components capitalize on the power of content. A veteran of more than 30 years in the publishing industry and a prolific content producer himself, Brian leverages the breadth and depth of his experience to deliver innovative content solutions.

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