This is the U.S. response to the World Blind Union's proposed copyright treaty from May 2009. I ran OCR on the original inaccessible PDF using Adobe Acrobat. No other changes have been made.

1. 'urld Intellcctual Propert)' Org.:lIlization
ShHl ding COlllll1iHcc on Copyright :llId Related Rights (SCCR)
Eightcenth Session
M�lY 25- 29. 2009
United Satc� of America
Staicmenl on Improving Accessibilit) to Copyrighted Worlu. f£lr
Blind nnd Vis unll� Imp:lired I)ersons
As Deli,'crcd
M:l� 26.2009
GcncvlI. Switzerland
The United Stales acknowledges the great interest expressed at the Seventeenth Session
of the SeeR in addressing issues relating to improving access to copyrighted works for
blind and visually impuired persons. As promised. and after beginning useful,
informative consultations with U.S. stakeholders. the United Stales has come prepared to
begin the process of sharing U.S. experiences in this area. with a vie" toward engaging in
a robust. sustained and prOductive discussion of this issue.
Our discussions with stakeholders in the United States have been e,.1.remcly rich and
rewarding. Therefore. we would like to share our experience and preliminary
observations with other members of the Committee in some detail. At the outset.
however. by 'way of a headline. the U.S. delegation learned that the issue of improving
accessibilit) to copyrighted works for blind and visually impaired persons presents a
multi-faceted and inter-related set of challenges and opportunities. including complex
issues ofla. technology. business. and human and financial resources.
Excepliolls allli Limitations: Tlte U.S. Experience
The United States approaches the subject of exceptions and limitations to the exclusive
rights of authors and other creators with a great deal of experience. Over mnny yea�,
U.S. courts have developed and progressivel� refined a sophisticated jurisprudence of
exceptions and limitations to the exclusive rights of authors and copyright owners. The
U.S. Copyright Act also contains detailed exceptions. among oLhers. for the benefit of
blind or other persons with disabilities. libraries. face-to-face teaching. instnlctional
broadcasting and distance education.
In addition. under the important U.S. affirmative defense of"fair use:' U.S. courts have
long allowed uses of copyrighted works on a facl-specific, case-by-case basis. when the
use is narrowly lailored to fit the demonstrated need. In 1976. the U.S. Congress codified
the fair use doctrine. providing a non-exclusive list of four factors as guidance to consider
in detenninin!;l whether a particular use is fair.

2. l.S. C.J.TCP';'JI/. for ,h(' /Jliml or O,her PerSfms ",;,h I)i.'Ulhili(ic,
Over u dccuc.Je ugn. Ihl' LOlled St;:lIe� cnacwd amendments (1 nur copyright 10 IU
establis h a Iimlll1lion on c,"cluslve rights for the benefit of the hllnd or Olil er pcr:-;um. > Ith
dis ahilities. Thai provision was amended five years ago in an elTun In improve acces� ((I
educational malerials, In broad outline. under Sect ion 121 of lhe l;.S, Copynghllcl
certuin authorized organiznt ions with the permission of the cOPYright owner. inti) make
.
copies tor phonorecords) of prcviousl) published. non-drumatic wllrks in spf.!cialll.ed
fonnats (lm.lille. audiO. or digit;'11 lext) for the exclUSive usc or blend or Cllht.:r rcr..lIn� w it h
di sabilities
.
As we noted in the Seventeenth Session of lhe SCeR. the United Stales helieves that a� II
mailer ofro1ic)' and principle. properl)' crJ.fted exceptions and limitations for the heneli!
of the blind or other persons Wi th disabilities. while Ink ing into account the rights und
concems ofaulhors and copyright owners. are highly desirable. To better understand and
10 begin to accommodate the competing interestS of mul tiple stakeholders with respect 10
Ihe speCific issues under discussion in Ihe SCCR. how e l e r the United States also slaled
,
that national consultations arc required.
The U.S. Consultati()n Process
Since the last meeting of the SCCR the United States has launched a domestic
,
consultation process. In recent months, the United States Copyright Office and the
United Stales Patent and Trademark Office held help f infonnal meetings or teleph one
ul
calls with a cross-section of stakeholders to gather infomation about experiences with
the U.S. copyright limitation for the blind or other persons with disabilities. (We use the
phrase "the blind or other persons with disabilities" because it is the one referenced in the
U.S, Copyright Act and the one with which we are mosl familiar. The phrase is not
defined in copyright law but, ralher. is cross-referenced in provisions of disabilities l aw ) .
Among the organizations consuhed informally were the Association of Amer ican
Publishers. the American Council of tbe Blind. the American Foundation for the Blind.
the American Library Association, the Association of Research Libraries. BookShare. the
DAISY Consonium, Knowledge Ecology International, the National Federation of the
Blind, the National Library Service for the Blind & Physically Disabled. Paramount
Pictures, the Royal National Institute for the Blind, the Software & I nf ormation Industry
Association. and the World Blind Union. Through these preliminary discussions. we
learned that stakeholders have a range of nuanced liews on the efficacy of current efforts
to provide access to copyrigbted works. bUI that all start from the premise from the
premise that facilitating the availability of accessible fonnats is important.
On the basis of these preliminary discussions with stakeholders. as well as previous
meetings of the SeeR, the Copyright Office and USPTO developed a list of topics to
explore further. A Notice of Inquiry was issued to the public in March 2009, req uesting
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3. initio] comments and repl� comments on multiple topics related to the experiences of
pef'$ons within (he United States with resrect to (] ) accessing u.S. worb or sharing
accessible copies within the United Stales. and (2) accessing foreign works or sharing
accessible copies of L.S. works with foreIgn persons. The inquif) included questions
Hbout applicable U.S. statuto!) and regulator} provisions: private sector initiatives:
library programs: standardized formats. programs. and devices: and resources.
The Copyright Office and the USPTO also soughl comment on SOme proposed measures
to facilitate and enhance access Lo copyrighted works that might be appropriate for action
al the national or internalional levels (including in cooperation with Member States.
WIPO or OIher mechanisms). Spedfically. the Copyright Office and the USPTO
requested public commelllS on the following measures:
(I) Developing standardized accessibility formats and other technical norms:
(1) Establishing trusted intermediaries to coordinate resources, eliminate
unnecessary duplication of accessible works. and ensure best practices:
(J) Providing technical assistance. coordination. and educational outreach:
(4) Promoting market-based solutions achieved through private sector copyright
licenses or other agreements; and
(5) Developing binding or non-binding international instruments. including a
ueaty that would eslablish minimum requirements for limitations and exceptions
for blind and visually impaired persons.
The inquiry generated thirt)-two initial comments and three repl) comments from a range
of stakeholders. including nonprofit organizations. private companies and interested
individuals. Commentators expressed views on genera! considerations related to
accessibility of copyrighted works under existing statutory and regulator) provisions. as
well as some specific considerations- for example. those related to the accessibility of
instructional materials for students.
Other comments included technical considerations. including formats. programs and
devices: resource considerations in various sectors including government. private sector,
nonprofit. and philanthropic; library programs: commercial and nonprofit private sector
initiatives: the development of standardized accessibilit) formats and other technical
norms: the possi b ility of establishing trustt.>d intennediaries 10 coordinate resources.
eliminate unnecessaf) duplication of accessible works. and ensure best practices:
proposals (0 provide additional technical assistance. coordination. and educational
outreach: the promotion of market-based solutions through private sector copyright
licenses or other agreements; and proposals 10 develop binding or non·binding
international instruments. including a treat) that would establish minimum requirements
for limitations and exceptions for blind and visuai/) impaired persons.
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4. I.a<;' wc..'Ck. on MIl� IH. 2009.1hc Copynght Office and the LJSPTO hdd a day-long
puhlic meeting and Invited �.dl interested stakeholder repre!.Cnlallve!o.to participate In
order to explure wpies rmstd in the commenLc; in greater depth and to allov.. the direct
c>.chllngt: ofvicw!-; hctwt:cn the stakeholders themselves. Throughout the day. panelists
ansv...cred questions from the L.S. delegation and eng.aged in discussion with each OIher.
The Notice of Inquiry. the comment!> nrsUlkeholders and the transcript ur the puhli(;
meetmg an: �llIl1vadablc un the ll.S. Copyright Office wco<.;lte ww., .l:opvrighl.gm
Preliminary Ohserllaliolls
Thu� fur. the United State:- has confirmed thm there are multiple. inter-related challenges
when it comes w providing access to copyrighted works for the blind or other persons
with disnbililies. A mi. of highly-compic>. factors intersect. These factors include the
application of coflyright lav.. and disabilities laws, but also mcludt: economic faclOr...
factors relating to technical standard!' nnd formats, factor!. related to coordinatloll und
best practices. and the promise of new technologies and nev.. business models_ The
United Stales believes that the analysis of these issues require a careful. nuanced
approach. The United States will continue the consultation process in the month� lU
come and expects to be able to provide additional information in future meetings of the
SeeR. At this time. however. we would like to share with other members of the
Committee a few preliminary observations from this rich and rewarding conversatlun.
• First. we learned thal the scope of copyright protection is onc ractor among muny
that affects the availability of content in accessible forms.
• Second. not surprisingly. we heard that there is a strong preference for cOntent in
digital format. not only because it can be easily reproduced and distributed. but
because it can be made available with greater functionality.
• Third, from representatives of blind and visually impaired persons, we learned
that not all digital formats are compatible and interoperable. A Ithough this
problem is being addressed through the promotion or standards (including DAISY
Consortium's .xml format). much work remains to be done.
From representatives of rights holders, we gained a deeper understanding of the
use of and need for digital rights management (DRM) to prevent high levels of
infringement. and the fact that DRM sometimes interferes with access to
copyrighted works by blind and visually impaired persons. In national law, the
United States has been able to address this problem with 8 regulatory exception t('l
the prohibition on the act of circumventing access controls,
• Fourth. we gained new insights into the critical issue of the relatively high costs
associ ated with producing accessible copies (a problem that is exacerbated by
duplicative production which reduces economies of scale). We learned that the
United States produces a great number and variety of accessible products, but that
such levels of production are made possible through governmental and/or private
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5. charitable subsidies. The current marketplace realil) i!' thai accessible products
are expensive.
• Fifth. we too" note of the fuclthm thm there arc willing buye13 and willing seller!.
in the market for licenses to create accessible content. Despite such signs of
possible market-based solutions. we also became aware of complicated rights
clearance issues. concems about downstream infringement. and other market
condilions noted earlier.
In summar). in our consultations thus far. we have heard wide agreement that right.;;
holders and the visual!) impaired communit) must work together in the spirit of
cooperation to identiC) practical projects thaI will provide sufficient incentives for rights
holders to create ne" business models and to serve broader markets: and
We heard much suppon for the premise thaI the blind and visuall) imp<lired persons
should have full access to ne products through collaborative ,"'ork on technical
standards. formats. and best practices: and
We heard tha.t the existing legal and regulatory provisions already in place require some
"care and feeding" as 10 implementation. to better ensure that practices are efficient and
timely. and to alia" libraries and other trusted intennediaries to continue to serve
members of the blind and visuall), impaired population, particularl), as a safet) net for
those who are not served in the marketplace.
Thank you.
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