Copyright Exception and Trusted Intermediaries: Two Concepts that work together

Short White Paper by George Kerscher, Secretary General, DAISY Consortium

(Draft: May 27, 2009)

Introduction

The concept of an international copyright exception similar to that proposed by the WBU for the WIPO meeting in November 2008, and the concept of a set of relationships between publishers and trusted libraries and organizations whose mission is to serve persons with disabilities are in perfect harmony.  This short white paper will attempt to lay out the rationale and bring those that see these concepts as opposing together.

Principle: These concepts are in harmony as long as it is understood that the long term solution is the direct purchase of fully accessible versions of published materials by persons with disabilities and by libraries who serve persons with disabilities.  If this white paper is read with this underlying principle in mind, then the harmony I seek to explain will be easier to grasp.

Trusted Intermediaries

Understanding that everybody is looking forward to the time when all digital publications are available at the same time and at the same cost to persons with disabilities and to the population as a whole.  The libraries who are currently serving persons who are blind and print disabled can be trusted to work towards this common vision.  We also understand that it will take time and work to get to this state.  At present, voluntary licensing is quite limited and complex, covering a tiny fraction of published works.  Building trust, which is essential, and negotiating licenses with rights holders can be time consuming and take a great deal of limited staff resources.  We will need to clarify how Trusted Intermediaries can be identified and clearly describe their qualities, characteristics, and acceptable behaviors to build the relationships we all need.

Trusted Intermediaries want to purchase or license accessible versions from the Rights Holder.  The current controversy in the USA over the use of Text-To-Speech (TTS) in Amazon’s Kindle underscores the clarifications that need to take place, or we will never be able to reach our ultimate goal.  The Trusted Intermediary only wants to produce an accessible version if it cannot be directly purchased from the rights holder or obtained from another Trusted Intermediary who has already produced it.

The Trusted Intermediaries want to work with the publishers and rights holders to produce books and other publications that are not yet accessible through the current publishing process.  Many different agreements can be worked out that are mutually beneficial, including the publisher obtaining the accessible version and making it available for sale.  Of course, this must be financially equitable to both parties, creating a win-win situation.

Trusted Intermediaries have extensive knowledge of persons with disabilities.  This puts them in an excellent position to provide guidance to publishers as the various reading systems are considered or developed.  Testing and modification recommendations are only a few of the services a publisher can look to their Trusted Intermediaries to provide.  In addition, we expect Trusted Intermediaries to identify and help to develop additional markets the traditional publisher has not considered.

International Copyright Exception

First, with an international copyright exception, there would be extensive immediate gains.  Primarily, it would be possible for existing libraries and service organizations to share content they produced across national borders.  It is expected that this exchange would be a library-to-library model.  The libraries in each country would continue to distribute content to their patrons under their current national laws.  The only change is that the libraries would legally be able to share their productions of accessible versions with each other.  This immediate gain is based on the collections that have been developed by these libraries through the years.  For example, a library in country X could make available to library Y in another country a title based on an agreement that covers costs and has the provision that further distribution is not allowed.  The agreement would allow library Y to distribute to their patrons, but no broader.  It is expected that library X would want to have similar agreements with other cooperating libraries.  This process is focused on titles that are not commercially available from publishers directly; this is for titles that the library has had to manufacture in an accessible format.  Having this exception available as quickly as possible will benefit people who are starving for information.

Second, it is expected that an international copyright exception will be needed in the foreseeable future whenever publishers do not see a market value in producing accessible versions of their publications themselves.

Finally, an exception is needed so organizations can provide supplemental materials, such as figure descriptions, tactile graphics, and braille versions even when the publisher is selling a fundamentally accessible version.  This service is in support of the publisher’s product and makes it more attractive, especially to educational institutions that are purchasing digital products, but must have the supplemental materials to fully engage students with disabilities.

Conclusion

From this perspective the concept of an international copyright exception is in harmony with the concept of having a Trusted Intermediary relationship to build upon.  The cost to a library to produce an accessible version can be drastically reduced if acceptable computer files are transferred from the publisher to the Trusted Intermediary.  The tools and technology that support this interoperability must be jointly developed between publishers, Trusted Intermediaries, technology vendors, and standards organizations.  The file transfer from publisher to Trusted Intermediary must happen with clear agreements in place so that there are no surprises.  Within these agreements a mechanism for reporting on the activities of the Trusted Intermediary would be expected.  At the same time, a publisher who is unresponsive to their local Trusted Intermediary should understand that this Trusted Intermediary may produce accessible versions of their publications and legally distribute the materials to their patrons and to other Trusted Intermediaries throughout the world, but this is still in a trusted controlled environment that protects the rights of everybody.