An interesting first hand report on the Treaty for the Visually Impaired discussions of civil society organizations with the White House IP foreign policy delegation in connection with negotiations at the World Intellectual Property Organization (WIPO) in Geneva.
> From: Jonathan Band <jband(a)policybandwidth.com>
> Date: June 1, 2013, 2:11:12 PM PDT
> To: Luis Villarroel <info(a)innovarte.cl>
> Cc: Tvi <tvi-discuss(a)lists.keionline.org>
> Subject: Re: [tvi-discuss] Summary of the White House Meeting on the Treaty, Friday May 31
>
> We did 95% of the talking so there is not much to add. As Jim said, the stress was on how this treaty would benefit the blind in the U.S. That is a message the USG folks not deeply involved in the treaty (i.e., Edelman, Perlmutter, and Niejelow) hadn't heard before, and it clearly made an impression. Justin conceded that even though U.S. law would allow an accessible format copy to be imported into the U.S. (at least post-Kirtsaeng), foreign law might not allow the export of that copy to the U.S., and thus the treaty would allow more imports of accessible copies into the U.S. Edelman asked whether the treat could be seen as promoting the free cross-border flow of information (which the Administration supports), and we heartily agreed.
>
> We also stressed that we wanted to make sure that nothing in the treaty could be used against us to narrow the Chafee amendment -- again, underscoring the potential impact on the blind in the U.S.
>
> One small point of clarification with respect to what I said. I said that the rights holders' concern with respect to the precedent this treaty would set for other copyright exceptions treaties had no merit because the other two exceptions treaties (libraries and educational institutions) on the WIPO agenda have no chance of adoption. Given this reality, U.S. libraries aren't pushing for a library treaty. Niejelow responded that there are other international agreements that are going forward, such as TPP and TTIP, so this treaty could have an impact on them. Unfortunately, the conversation moved on so that I didn't have a chance to agree with him on how truly awful it would be for US rights holders if the TPP referred to "fair practices, dealings and uses." ;-)
>
>
>
> Jonathan Band
> policybandwidth
> 21 Dupont Circle NW, Suite 800
> Washington, DC 20036
> phone: 202-296-5675
> fax: 202-872-0884
> jband(a)policybandwidth.com
>
> On Jun 1, 2013, at 4:23 PM, Luis Villarroel <info(a)innovarte.cl> wrote:
>
>> Jim Thanks very much for sharing this important exchange. I would encourage more info from others attending the meeting.
>>
>> Kind regards
>>
>> Luis
>>
>>
>> 2013/6/1 Jim Fruchterman <Jim.F(a)benetech.org>
>>> I thought I’d provide a summary of this meeting for the benefit of many interested parties, both inside the U.S. and globally.
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>>>
>>>
>>> In attendance from the Obama Administration: David Edelman (Innovation, Internet and Privacy Senior Advisor from OSTP in the White House), Justin Hughes (the lead negotiator on the Treaty for the U.S.), Shira Perlmutter (from the US Patent and Trademark Office in the Commerce Dept, Jonathan says she’s de facto Justin’s boss), Nancy Weiss of IMLS (Museum and Library Services, the library person from a U.S. agency who is part of the Treaty team), and two folks from IP Enforcement, the unit headed by Victoria Espinel: Alexander Niejelow (Chief of Staff to Espinel) and Christine (who handed out no cards and whose surname is much longer than mine!).
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>>> For the advocacy community: Jonathan Band (representing the Library Copyright Alliance), Melanie Brunson (American Council of the Blind), John Pare (National Federation of the Blind) and Jim Fruchterman (Benetech/Bookshare).
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>>>
>>>
>>> The goal of the meeting was to present the advocacy agenda to the Administration to counterbalance the malign influence of the IP lobby. In theory, we were supposed to be meeting with Teresa Stanek Rea, Acting Under Secretary of Commerce and the acting head of the US Patent and Trademark Office, but Justin seemed surprised saying he didn’t think she was ever scheduled to be part of the meeting. An awkward moment. However, I think we ended up making progress with some of the key staff anyway.
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>>>
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>>> The planned goal for the meeting was to emphasize the value of the Treaty to Americans with print disabilities, to declare our interest as stakeholders in the outcomes of the Treaty negotiation. We planned on hitting each of the major World Blind Union key points, but framed from an American point of view, for an American political audience.
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>>> John Pare set us up and concluded that this was a treaty that would help American blind people. Melanie talked about the lack of books for the blind, even with services like NLS (doing 2,000 books a year) and Bookshare (doing 30,000 books a year) compared to the 200,000 books being published each year in the U.S. alone. She addressed the issue of duplicate production, or about the reluctance to share books across borders because of the uncertainty of how legal that was. The issue of students and adults being interested in languages other than English was pointed out, since most of the groups can devote very few resources to titles in other languages.
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>>> I talked about the cost and legal uncertainty (even though Justin disagrees with our lawyers on how far we can go) of importing books, even though we have considerable demand. I emphasized how well Chafee worked in the U.S., that we were able to scan and convert hundreds of books a month based on specific requests from people with print disabilities. I pointed out how little piracy there was: that with over 1.2 million downloads a year, we found fewer than ten cases of books being posted on the Internet, and that in nine out of the ten cases, the name of the individual who downloaded the book was in the plaintext of the ebook file! I hammered on the commerciality issue as un-American: that as a library we thought it was wrong to tell patrons they should buy a book rather than borrow one. I also talked about the problem of Digital Rights Management and how they stop people from gaining access. My final point was that we were worried about the Treaty having provisions in it that threatened our favorable copyright exception.
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>>>
>>>
>>> Jonathan Band added a great deal from the library perspective. He tackled head-on the issues cited by the rights-holders. He didn’t buy the “slippery slope” argument that helping the blind with an exception would suddenly lead to catastrophic provisions in treaties on libraries or education. His members aren’t even sure that a Treaty for Libraries is a good idea. He (and John) noted that patent-holders were not stakeholders in this policy debate, that the Treaty had zero to do with patents, and suggested that the Administration not take them seriously in their advocacy. He also brought up the HathiTrust litigation in some detail and Justin and he went back a forth on that.
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>>> Everybody talked about the need for a workable treaty that helped Americans with disabilities. We don’t want onerous provisions that discourage access to works: John Pare emphasized that the Treaty should promote access, promote reading.
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>>> The White House guy was interested in numbers, in the impact both in terms of access and economics. A fair number of queries were trying to get a handle on the number of beneficiaries, and we ended up noting that these provisions are supposed to help a narrow number of people (I used my 1-2% rule of thumb that we cite internally at Bookshare). We did talk about people with severe dyslexia and physical disabilities as being included. The IP Enforcement guy was trying to push some of the rightsholders points, but couldn’t point out which U.S. law he thought we should change.
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>>>
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>>> We avoided getting deep into the weeds on the 3-step test, although it came up in the context of how many people would benefit (Justin noted that it’s part of step 1). Justin talked a fair amount about compromises that had been struck. We were supportive of the compromises that the WBU had bought into, such as commerciality being an option and not a requirement (handling objections from countries like Canada, Japan and Australia where that’s part of their law). I pointed out that exceptions with commerciality seemed largely if not totally ineffective, but that we strongly objected to it being mandatory in cross-border exchange.
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>>> The White House guy asked about the politics, if we were happy now that MPAA had made their statement. John and Melanie made it clear that the coalition was continuing with its foot on the accelerator. The NFB sign with “Exxon doesn’t want blind people to have Braille books” and a possible “GE wants to keep the blind in the dark” slogan was mentioned. Since the IP Owners Association had explicitly named policy objections that we found unacceptable, we said we would keep attacking them for their unconscionable positions. I think this made an impression on the politics involved.
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>>> Jonathan worked in (with support from Nancy I believe) the authorized entity issue that especially concerns the libraries.
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>>>
>>>
>>> The conclusion statements from Melanie and John were clear: blind people in America want an effective treaty out of self-interest, out of the need to respect their human right to read. We want it to not simply permit, but promote access to works created outside the U.S. And, we do not want a Treaty that is more restrictive than U.S. law, that would erect needless barriers to overcome imagined but nonexistent problems posed by the IP owners.
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>>> I hope that others who were in attendance at the meeting, who are on this email list, could share points that I missed or got wrong.
>>>
>>>
>>>
>>> Jim
>>>
>>>
>>>
>>> Jim Fruchterman
>>> President and CEO, Benetech
>>> Email: jim(a)benetech.org
>>>
>>> Twitter: @JRandomF
>>> Blog: The Beneblog
>>>
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>>>
>>
>> --
>> Luis Villarroel Villalón
>> Director de Investigación
>> Corporación Innovarte
>> www.innovarte.cl
>> (56 2) 688 69 26
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