Filmmakers’ group tries to reshape treaty that would benefit the blind

June 22, 2013

Hundreds of negotiators from around the world have descended on Morocco this week to finalize a treaty aimed at ensuring that millions of blind and vision-impaired people can get books in accessible formats like audio, Braille and large print.

But the treaty, years in the making, could be in jeopardy because of unresolved differences between advocates for the blind and the Motion Picture Association of America, which says the accord could undermine protections important for filmmakers, publishers and other major industries.

The agreement, known as the treaty for visually impaired persons, would allow for such books to be distributed internationally, which is now largely prohibited, and encourage governments to allow books to be converted to accessible formats without having to get permission from copyright owners every time.

Advocates for the blind are pressing to extend the kind of rights afforded by U.S. law — which allow books to be converted to accessible formats without seeking permission from copyright holders — to the 300 million blind and visually impaired people around the globe. Only 1 percent of the world’s books are in such a format, according to the World Blind Union.

But the MPAA has been using its considerable clout with Washington officials to press for changes in the accord, warning that loosening copyright protections to help the blind could set a costly precedent.

“What happens here could affect other future treaties,” said Chris Marcich, who is in charge of dealing with the negotiations for the MPAA and its international wing, the Motion Picture Association.

The motion picture industry, along with counterparts in music and book publishing, say that an international treaty making it easy to bypass copyrights could do far-reaching harm in the digital age. Chipping away at copyright protections is especially dangerous, they say, at a time when it has become all too easy for users to appropriate others’ content. They pointed, for instance, to damage done by Napster, the online music-sharing service that critics say upended the music industry.

Hollywood had already won several battles over treaty provisions. Now, with the final scheduled round of negotiations underway, it is looking for more. The MPAA says the draft remains unacceptable, and it is making a last-minute push to win additional concessions. Advocates for the blind say these changes, if adopted, would essentially gut the agreement.

“They suddenly come out of the woodwork in the eleventh hour, and they’ve risked blowing up the entire negotiation,” said Dan Pescod, vice chairman of the World Blind Union’s campaign for reading rights.

If the differences are not resolved by the scheduled completion of talks on Friday, the treaty will die.

Three-step test

The MPAA has already persuaded the Obama administration to change course on several key provisions and to pressure other countries to do the same, interviews and records show.

Negotiators have dropped language in the treaty pertaining to movies and videos — which, for instance, could have dealt with adding audio to describe the on-screen action or extra-large subtitles for foreign films — and narrowed the focus to books.

At the MPAA’s urging, negotiators have added language called a three-step test. In part, this could bar nonprofit groups from reproducing books in accessible formats if this interferes with a copyright owner’s chance to make money from the books as they would otherwise — for instance, by developing a future market selling to the blind.

But the MPAA says the protections afforded by the three-step test are still too weak and wants them to be more effective. Moreover, Hollywood is strongly resisting language in the draft that mirrors the concept of “fair use,” long embodied in U.S. copyright law. Fair use says that copyright material can be used without permission in certain circumstances, such as for nonprofit educational purposes.

The American entertainment industry has long been a muscular advocate for its interests. The movie business, along with television, music, cable and Internet interests, contributed $20.7 million to President Obama’s reelection campaign in 2012, according to the Center for Responsive Politics, making entertainment the fourth-largest industry sector backing the president. The heads of several major film studios, such as Warner Bros., are among the largest bundlers of Obama’s campaign money.

Entertainment industry officials say their impact on the treaty negotiations has been limited.

“If we had such influence, I wouldn’t be so concerned about the course of this treaty,” Marcich said. “I don’t feel like we’ve had any undo influence or disproportionate weight in the process.”

The advocates for the treaty have their own powerful allies. Singer and songwriter Stevie Wonder sent a YouTube video to delegates promising to visit Marrakech to sing for them if the treaty is approved.

Concerns raised

The Hollywood lobbyist cornered the chief U.S. negotiator, Justin Hughes, just as the closed-door talks were breaking up for the day. Hughes appealed for understanding.

“We can’t go any further. You can’t ask for too much,” Hughes urged, according to another delegate who overheard the conversation that took place in Geneva in April.

Hughes reminded Ted Shapiro, a copyright attorney who lobbies for the MPAA, that Hollywood had already gotten what it wanted on movies, videos and similar material, and that additional copyright protections had been added.

But the MPAA still was not satisfied, according to the account provided by David Hammerstein, a Spanish politician and delegate to the negotiations who overheard the exchange.

Hollywood was still strongly objecting to the fair use provision, which is one of the legal principles cited in the United States to make books accessible to the blind.

Shapiro, in an interview, said he did not specifically remember the April encounter with Hughes but added that they have had several conversations.

“I was making interventions. My constant refrain during the interventions on behalf of the Motion Picture Association was that it needed to be consistent with the international copyright system,” said Shapiro, a former general counsel to the MPA in Europe who now serves as an outside legal adviser to the MPAA.

He said he raised concerns about fair use with Hughes and others on the U.S. delegation, warning that other countries may not interpret the provision the way Americans do and urged that fair use be dropped from the treaty.

When the fair use provision was inserted into the treaty in February, representatives of the U.S. entertainment industry responded angrily.

E-mails show that the MPAA and its members raised their concerns with U.S. officials, in particular with those at the Patent and Trademark Office who are coordinating the negotiating effort.

“I would love to chat about last week’s debacle in Geneva,” Scott Martin, executive vice president for intellectual property at Paramount Studios, said in a February e-mail to Shira Perlmutter, director for international affairs at the agency.

They met soon after, according to another e-mail from Martin, holding discussions at Hank’s Oyster Bar, which he described as “the perfect spot.”

In that same e-mail to Perlmutter in mid-March, Martin describes the conversation he had a day later with Hughes about possible changes in the treaty.

“I had a long lunch with Justin the next day and we discussed some language that could address our concerns about the ‘fair use/fair dealing’ debate,” he wrote. “I’m discussing the language with the other studios and if they are cool with it we will discuss it further on a call with Justin tomorrow.”

Less than a month later, the MPAA sent Hughes critiques of the treaty by a pair of legal experts the group had hired. Included was sample language for rewriting parts of the treaty.

The e-mails were obtained under the Freedom of Information Act by Knowledge Ecology International, which is lobbying on the treaty to keep the three-step test out and the fair use provision in.

Mixed signals

Patrick Ross, a spokesman for the Patent and Trademark Office, said the U.S. delegation has received input from many interested parties, including advocates for the disabled and copyright owners.

The U.S. government has sent mixed signals about whether it wants the fair use provision to remain in the treaty. The State Department sent an e-mail to foreign governments this spring asking them to support deleting the provision. “Quite frankly, we think that this reference could lead to overly broad exceptions and, in the interests of pragmatism, we think it would be best if we could drop this reference,” said a State Department communication to African governments.

It continued, “Basically we think that removing this fair practices reference will be a big help in getting consensus in the United States to negotiate the final parameters of a binding agreement in Marrakech. Note that we feel sufficiently strongly about this point to raise it with you directly . . . .”

Tom Hamburger contributed to this report.

Kimberly Kindy is a government accountability reporter at The Washington Post.
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