WIPO Standing Committee on Copyright and Related Rights (SCCR),

The US Copyright Office holds hearings and requests written testimony prior to each meeting of the WIPO SCCR in Geneva, Switzerland. The main point of discussion was the proposed Copyright treaty drafted by the World Blind Union (WBU). The following was the fourth topic of consideration prior to the WIPO meeting in December, 2009...

4. Other possible courses of action that would facilitate access by ‘‘blind, visually impaired, and other reading disabled persons.’’ Please comment on any additional, possible methods of improving accessibility about which the Copyright Office and the USPTO should be aware, including possible roles for WIPO, the U.S. government, and the commercial and noncommercial private sectors.

WIPO -- The twentieth session of the SCCR will take place from June 21 to 25, 2010 in Geneva, Switzerland.


As there will (apparently) be no comment / reply session or hearings in Washington, DC, prior to the US delegation leaving for Geneva 20th WIPO SCCR meetings, I sent at sent the following letter to the USCO Office for Policy and International Affairs: (Begin Letter to USCO)

My name is John Edwin Miller (JEM). I am a US Library of Congress Certified Braille Transcriber and President of 121AuthEnt.org, an IRS 501c3 Florida Non-Profit Corporation with a ‘Primary Mission’ to provide Braille and other services to those who are visually impaired. I am not the ‘largest’ or the ‘leading’ of anything.

I came to this issue strictly as someone who wanted to provide high quality Braille renditions to persons who were being offered unedited automated Braille translations on a take-it-or-leave-it basis. I soon learned that if those qualified recipients forwarded any file to me for editing purposes, they would be in violation of signed agreements and would forfeit Membership rights.

Several US ‘Authorized Entities’ (AEs) or ‘Trusted Intermediaries’ both in the USA and abroad among other related opinions have made the statement that their copyright exemption privileges stop at their national border… That is probably true. Both the US Copyright Act Section 121 ‘Chafee Amendment’ and UK Copyright (Visually Impaired Persons) Act of 2002 specifically state either directly or through license that such is the case for Organizations i.e. that any recipient of specialized format materials directly from an NGO Organization or Non-Profit AE must be a citizen or otherwise qualified resident of that country.

The case can be argued, however, that both the USA and UK laws have provisions whereby persons working in a one-for-one or indirect basis can distribute under specified conditions materials in specialized format to qualified persons across national borders…

Under the UK (VIP)A 2002 copies of materials protected by UK Copyright Law (1988) made under provisions of 31A can be distributed to persons who are not citizens of the UK.

(Sullivan study, WIPO Document 15_7): UK Export to individuals > Probably permitted

I sent the following letter to persons all of whom have participated in previous US Copyright Office SCCR comment sessions and/or the actual WIPO meetings in Geneva:

(Begin Letter)

Dear -- My name is (JEM). I am a US Library of Congress Certified Braille Transcriber.

Under Section 31A of the UK Copyright (Visually Impaired Persons ) Act 2002, a Braille copy can be made of a literary or dramatic work which is qualified for UK Copyright Law protection so long as the as the qualified visually-impaired recipient has "lawful possession" or "lawful use" of a hard copy version of the book. According to the RNIB:

If you are visually impaired, you can make, or ask anyone to make for you, a single accessible copy of anything of which you have "lawful possession" or "lawful use".

This can cover anything that you have bought, been given or lent, or that is held in a library that you are eligible to use.

http://www.rnib.org.uk/getinvolved/campaign/accesstoinformation/copyrightcampaign/Pages/Copyright_Act_2002.aspx#H2Heading8

While there have been published statements -- among them by Pinsent Masons, LLP (UK) and the RNIB itself --  that the Copyright (VIP)A 2002 does not allow for export of a (Braille) copy of a book to a qualified visually-impaired person outside of the UK, that language is nowhere mentioned in the 2002 Act itself and only comes into play via the Copyright Licensing Agency Ltd (CLA) VIP mandatory license which applies solely to copies made by organizations under provisions of 31B.

CLA VIP LICENSE (2003)

2.1.2 Distribute Licensed Copies to Authorised Persons within the United Kingdom;

The mandatory Licensing scheme for a 31B organization is contained in 31D:

31D(1) Section 31B does not apply to the making of an accessible copy in a particular form if—

(a) A licensing scheme operated by a licensing body is in force ...

Pinsent Masons at < http://www.out-law.com/page-10059 >:

(Also), the UK law, like equivalent laws in other countries, does not allow the supply of a digital book to a customer overseas.

Dan Pescod, European and International Campaigns Manager, RNIB  (via DAISY Planet, June 2009), states that RNIB as a 31B organization under the CLA licensing scheme:

"If we make an accessible version of a book in the UK and want to send that to another English-speaking country where they don't have the resources to make books accessible, we should be able to do that," Pescod said.

"But the copyright law as it stands doesn't allow the transfer of that accessible info. The exceptions in place in national legislations stop at the border.

In contrast, the US Copyright Act at Section 121(d)(2) 'Chafee Amendment' specifically states that the any qualified recipient must be a US citizen or with other residency status as defined in the 1931 Pratt-Smoot Act (which established in that year the Division for the Blind at the Library of Congress now know as the NLS).

Therefore, if a person in Thailand -- who is registered with the Thai Government as a person who is blind or visually impaired -- or Spain, or South Africa, or Gibraltar has "lawful possession" or "lawful use" of a hard-copy version of a book first published in the UK or otherwise qualified for Copyright Law protection by the (UK) Copyright, Designs and Patents Act 1988, I will proceed on the basis that I can lawfully and without infringement make for that person a digital Braille BRF copy of that book so long as I and that person continue to be in full compliance with provisions of Copyright (VIP)A 2002 31A.

Thank you.

(JEM)

http://121authent.org/BRF_Files_Available.aspx

Attachment: (VIP)A 31A Braille Header for To Kill A Mockingbird by Harper Lee

,? ,BRL TRANSCRIP;N IS MADE "U ! ,COPY"R 7,VISU,Y ,IMPAIR$ ,P]SONS7 ,ACT #BJJB1 AN ACT 6P]MIT1 )\T 9FR+E;T ( COPY"R1 ! TRANSF] ( COPY"R "WS 6=MATS A3ESSI# 6VISU,Y IMPAIR$ P]SONS1 Z SPECIFI$ 9 ,SEC;N #CA,A (! ,COPY"R1 ,DESIGNS & ,PAT5TS ACT #AIHH (! ,UNIT$ ,K+DOM4

 

,COPY"R #AIFJ 0,H>P] ,LEE4 ,PUBLI%$ 0,HEINEMANN1 ,LONDON1 #AIFJ4

 

,TRANSCRIB$ #BJJG 0,JOHN ,$W9 ,MILL]

 

,VOLUME ,"O ( #C ,VOLMES

 

 ,,6,,KILL ,A ,,MOCK+BIRD

 

 0,,H>P] ,,LEE

 

 ,= ,MR4 ,LEE & ,ALICE

 9 3SID],N ( ,LOVE @& ,A6EC;N

 

..,LAWY]S1 ,I SUPPOSE1 7 *N .ONCE4 --,*>LES ,LAMB

This Braille transcription is made under the Copyright (Visually Impaired Persons) Act 2002, an act to permit, without infringement of copyright, the transfer of copyright works to formats accessible to visually impaired persons, as specified in Section 31A of the Copyright, Designs and Patents Act 1988 of the United Kingdom.

Copyright 1960 by Harper Lee. Published by Heinemann, London, 1960. 

Transcribed 2007 by (JEM)

Volume One of 3 Volumes 

TO KILL A MOCKINGBIRD
by HARPER LEE

For Mr. Lee and Alice
in consideration of Love & Affection

Lawyers, I suppose, were children once. --Charles Lamb

 

(End of Letter)

As per Section 121(b)(1)(B) of US Copyright Act, qualified persons who have received materials from an Authorized Entity can – so long as they remain in not “other than a specialized format” -- reproduce and distribute those materials as per

Section 121 b1B: Copies or phonorecords to which this section applies shall bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement;

Any agreement signed that would counteract or restrict such wording might prove unenforceable.

Section 121 US Copyright Act does not grant ‘Rights’ to an Authorized entity or anybody else; it merely defines two conditions that do not constitute ‘Infringement of Copyright’:

1)      When an Authorized Entity reproduces and distributes a covered material in a Specialized Format and then distributes that material IN a Specialized format to a Qualified Individual. (Section 121a)

2)      When a qualified Individual who has received such material – and by virtue of reading such in the required notice – reproduces and distributes that material in not ‘other than’ a specialized format. (Section 121b1B)

That was the interpretation as represented in the interpretation that I received directly from the US Copyright Office in 2007.

(Begin Letter) Subject: interpretation of Section 121(b)(1)(B)
I am a US Library of Congress Certified Braille Transcriber as of August 2003.

The disclaimer for the above states: "further reproduction or distribution in a format other than a specialized format is an infringement;"

Can it therefore be inferred that, if a Braille readable file (BRF) is legitimately received from an 'authorized entity', and the specialized format remains intact, that the file so received can be 'further' distributed without infringement?

Some have suggested that, even given the statute language, that the drafters of the statute really meant to so that NO further reproduction or distribution is allowed under any circumstances whether in specialized format or otherwise. Yet the drafters very specifically made this exception to 'further' distribution or reproduction.

This issue relates to my ability to edit and format BRF files received by persons who have legitimately received such materials but are dissatisfied with the quality of the Braille work so received.

Thank you.

(JEM)  Question submitted at 23:58 on 5/28/07

From: "Copyright Information" <copyinfo@loc.gov>
To: <johnedwin_miller@xxx.com>
Subject: Re: interpretation of Section 121(b)(1)(B)
Date: Thu, 07 Jun 2007 15:59:06 -0400

 

There is no legislative history on section 121, so we have no interpretation of it from Congress. Taking the language of the clause literally, it would imply that further reproduction or distribution in a specialized format is permissible, as long as the copies bear that notice. Otherwise, there would be no reason to have that notice requirement.

 That clause, however, is limited to reproduction and distribution. It does not include creation of a derivative work, which is what editing and reformatting may be considered. (End Letter)

When the WIPO Sullivan study analyzes whether copies made in the USA Under provisions of Section 121 can be exported the analysis of Ms. Sullivan is ‘PROBABLY’

(Sullivan study, WIPO Document 15_7):

 Export to individuals -- Probably permitted but only for copies in the special formats permitted under the exception

The law only states that the Section 121d2 qualified individual who receives the specialized format material directly from the AE must be a US citizen or resident as defined by the 1931 Pratt-Smoot Act; it is nowhere specified the citizenship of the person who might receive the specialized format material as per Section 121b1B.

The reason in the USA that persons who have received specialized format materials cannot ‘reproduce and distribute’ as per Section 121b1B is that they have signed agreements with the Trusted Intermediaries (AEs) that nullify the second case of copyright infringement as mentioned above and as defined by statute. Such agreements – which would be voided by the proposed WBU/Brazil treaty – can be considered as contrary to ‘Public Policy’ and there is ample precedent record right up to the US Supreme Court that no contract is enforceable if it abrogates rights or privileges as granted by (positive) statute.

If you read the Membership Agreements of certain USA Authorized Entities you find this is not speculative but the case as of right now.  The proposed WBU/Brazil, et al Treaty in fact states

Article 7.  Relationship With Contracts

Any contractual provisions contrary to the exception provided in Article 4 shall be null and void.

The WIPO ‘Garnett Report’ has stated that in some instances Membership agreements have “… gone beyond these (statutory) requirements to ensure broad support for the project.” It is possible that such measures would prove unenforceable if they in fact deny privileges to members as granted by the same statute under which the specialized format copies are made in the first place. SCCR/14/5

p 51

When asked, if the Section 121b1B notice does not mean as the US Copyright Office above has suggested, what it actually does mean and what is the utility in notifying the qualified recipient of this condition, I have never received a coherent explanation…  If it refers to further ‘reproduction and distribution’ by the AE itself, then what is the point of putting the notice in every specialized format material received by the qualified end user?

In its December 2009, the US Delegation Statement to the 19^th SCCR in Geneva referred to the limitations under the Chafee Amendment as being ‘carefully crafted’. If the intent of the drafters is that further reproduction and distribution, in a specialized format or otherwise, by the qualified recipient was to be prohibited, then I question how ‘carefully crafted’ is the 121b1B language… they could have easily just said so.

When I asked via email persons at Office of Special Education (OSEP) and US Department of Education -- who award funding on behalf of the Chafee Amendment-based K-12 NIMAS program -- what is their interpretation of the section 121 b1B notice and their policy as regards AEs which receive DoEd funding, the response was that such AEs have the right to impose contractual conditions that are designed to prevent Infringement of Copyright.

(Begin  comment from OSEP) Security measures. (The) requirement that an eligible user may not share accessible materials assigned to him or her is not unique…  Various security measures are employed by authorized users to help protect against copyright infringement.  The safeguards … to protect against copyright infringement appear to be in line with other authorized entities.  -- OSEP correspondence SEP 2009 (end comment)

My response was:

How can you institute procedures to protect against Copyright Infringement that which the US Copyright Act clearly says is NOT an infringement of Copyright?