One of the most passionate and compelling speakers at the eIFL 2nd IP conference in Turkey last month was Chris Friend, who is the strategic priority leader for the World Blind Union’s Right to Read initiative and also works with Sight Saver’s International training blind leaders in Africa.  A couple of private conversations with Chris and his wife Judy gave me a much-needed education on the copyright issues facing vision-impaired people and the wide array of technological solutions that could be available if the IP problems were solved.  Also, our hotel room was next to that of Chris and Judy, so my wife and I were often lulled to sleep by the rhythmic sound of his text-reader.  At the conference, Chris presented about the World Blind Union’s proposed treaty before the world Intellectual Property Organization “for blind, visually impaired and other reading disabled persons.”

The treaty, which is linked in a variety of formats from this page by Knowledge Ecology International, makes for interesting reading.  It represents a carefully constructed effort to craft an exception to international copyright law that would make it easier for visually impaired people to find books in accessible formats.  Of course, WIPO has not been very interested, until recently, in harmonizing exceptions and limitations to copyright law, only protection.  But there are signs that that is changing, and the WBU proposed treaty would be a great place for WIPO to start.

The treaty includes five provisions that I want to highlight.

First, it would permit users to reproduce works into accessible formats without authorization and to distribute those formats on a non-profit basis exclusively to visually impaired persons (article 4a).  Second, it would permit distribute on a for-profit basis if the work is not reasonably available in an accessible format (article 4c).  Third, it provides a useful definition of what “reasonably available” means, pegged to the price of the non-accessible version of a work and distinguishing between what is reasonable in the developed world and what is reasonable in the developing world (article 4d).  Next, the proposed treaty includes a provision to permit circumvention of technological protection measures when those measures would prevent the creation of accessible formats (article 6).  Finally, the treaty would explicitly state that contractual provisions that are contrary to the treaty would be voided (article 7).  These last two provisions are extremely important as any discussion of harmonizing limitations and exceptions gets started, and we should be grateful to the WBU for stating them so clearly and in such a compelling context.

All this took on added urgency for me this week as another group that represents visually impaired people, the National Federation for the Blind, held a protest outside the headquarters of the Author’s Guild.  The protest, about which there are photos and a story here, was because of the pressure brought to bear on Amazon to disable the text-to-voice features on its Kindle 2 e-book device.  As I have written earlier, the legal claim made by the Author’s Guild that Kindle was infringing their copyrights was insupportable, but nevertheless, Amazon choose to cave in rather than risk a court battle, even one it could clearly win.  I find myself wondering why, if the Kindle feature is a copyright infringement, the Author’s Guild is not also opposing the text-reading software that Chris Friend was using in Istanbul; could it be something as obvious as avoiding really bad PR?  Anyway, the National Federation for the Blind is now taking the Author’s Guild to task for opposing a technology that, whatever other uses it might have, would be a great boon to the visually impaired.  Kindle 2 is not an ideal technology for blind people — one must still see well enough to turn pages in order to use it — but the text-to-speech function, combined with Amazon’s wide array of available e-books, would surely assist a great many people experience literature that would otherwise be unavailable to them.  Copyright law should not, and as of now does not, when understood properly, stand in the way of this benefit.  Neverthless, the flap over Kindle 2 helps make the point that exceptions for the blind and visually impaired must be built in to copyright law at the highest level in order to prevent self-serving misinterpretations from further burdening those who want to exercise their “right to read.”

I had rather hoped to stay away from the controversy being generated by the new Kindle 2 Book Reader from Amazon and its “text to speech” feature that will allow the reader to offer a computer-generated audio reading of e-books, but there are copyright issues here too good to ignore.  It is hard to make sense of the claims being made in this kerfuffle, but it may be worth the effort in order to clarify what copyright does and does not protect.

In a widely-ridiculed public pronouncement, a spokesman for the Author’s Guild has denounced the audio feature of Kindle as an infringement of copyright, even though the e-books sold by Amazon are, of course, licensed from the publisher.  He is quoted as saying the “they,” meaning consumers, “don’t have the right to read a book out loud… That’s an audio right, which is derivative under copyright law.”  This led many to trot out a parade of horrible consequences, suggesting that parents might be sued by the Author’s Guild for reading”Goodnight, Moon” to their children.  So the President of the Author Guild took to the New York Times Op-Ed page to explain that that was not their intention. Unfortunately, his piece does not really explain what the claim really is.  He merely says that the Guild collects separate royalties for audio books and for e-books and that Kindle would “swindle” authors out of that double fee.  From a copyright perspective, it is interesting to try and sort out what infringement, if any, is involved in this “swindle.”

One way to look at this, of course, is as a simple contract dispute, and contract provisions are probably the way to settle this.  Authors and publishers can simply charge Amazon more for the e-book license to compensate for the potential decline in audio book sales when those e-books are “read” by Kindle.  Other e-book platforms would pay a lower price if they do not provide a text-to-speech function, and both sides could monitor to see if audio book sales really do decline.  For e-books already licensed to Amazon, the Author’s Guild could try to claim that this feature of Kindle 2 breaches the license terms, and try to demand additional money.  The public spat is likely an attempt to force such renegotiation.

But it is more interesting to ask if any copyrights are being infringed.  When a parent reads to a child, this is a private performance of a work that does not infringe any of the rights under copyright.  It is very important to remember that the performance right in copyright is only an exclusive right to authorize or deny PUBLIC performances, defined as a performance “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered.”  Based on this definition, it is unlikely that Kindle would ever infringe the public performance right under ordinary use.

This distinction of performances is undoubtedly why the Author’s Guild spokesman spoke of a derivative right.  Now he was simply wrong to refer to an “audio right” which is “derivative under copyright law.”  There is no separate “audio right,” there is only the public performance right discussed above and another exclusive right over the preparation of “derivative works.”  So a lot turns on whether an audio reading of a text can be called a derivative work.

It is generally thought that a derivative work must itself be an original work of creative authorship.  So a translation of an English text into Hindi involves new creative expression, as does the creation of a film from a novel; these are classic examples of deriviative works, and each involves the reuse of protected expression in combination with new creative authorship.  So a translator or a filmmaker must get a license from the original author to create these works, in which there is subsequently two (at least) copyright interests.  But an audio reading adds no creative expression, so it is hard to see how it is a derivative work. In this fascinating article, Julian Sanchez analyzes this argument very nicely, and suggests an exception — an abridgment has been held to be a derivative work, and it does not contain original expression that is added to the original.  I think there are historical reasons for this, but I will let Sanchez explain the ins and outs of this debate to those who are interested.

What I want to add to this discussion is an additional argument for why an audio reading should not be considered a derivative work.  There is a long standing rule of statutory interpretation that instructs court to read laws in wasy which do not make parts of the language used by legislatures irrelevant; we do not want interpretations that make whole portions of a law redundant or unnecessary, since we assume legislatures did not intend those readings.  If an audio reading is interpreted as a derivative work, we would have just such a reading, because that interpretation would make the public performance right “mere surplusage.” Why would Congress include a specific right over performance, and limit that exclusive control to public performances, if ALL audio readings were derivative works and therefore subject to the authors control based on a different exclusive right.  Audio readings are not derivative works because, unlike abridgments, they are subject to a different right, and we must assume that Congress intended that right (public performance) to circumscribe the control an author should have over readings of his or her work.

POSTSCRIPT — In the interval between writing this post and publishing it, the news has come out that Amazon has agreed to make changes to the Kindle.  I am afraid this merely reflects on the chilling effect of a lawsuit threat; it does not change the legal analysis, which suggests that the Author’s Guild won by making a very weak claim, but making it loudly.

Last week Federal Communications Commissioner Robert McDowell spoke with a small group of Duke administrators about a wide range of topics.  In response to one question (which was, I have reason to know, deliberately provocative), Commissioner McDowell, who is a Duke alum, gave a pretty ringing endorsement of the unregulated Internet.  He referred approvingly to the history of the Internet as an open environment that has, throughout its history, been free of government regulation.

McDowell chose to ignore, in these comments, the pre-history of the Internet as DARPAnet, a creation of the Defense Department’s Advanced Research Projects Agency.  But really his position is the one from which I want a government regulator to start; a stance of healthy skepticism toward regulation is the best way to ensure that careful thought proceeds regulatory enactment.  While suspicion of regulation is almost always a justified foundation, however, it is not necessarily the final word on the matter.

The context of the question Commissioner McDowell was answering was ‘Net neutrality, and in that context it is particularly easy for the FCC to oppose regulation, since that is the position favored by the major telecoms.  But it is far too simple to say that at long as the government keeps its hands off, the Internet will stay unfettered and equally accessible to all.  Commissioner McDowell clearly knows this, and his assertion was that competition is the best way to prevent private entities from closing off the Internet pipes to certain types of traffic.  But he also noted that the economic downturn has delayed the implementation of additional pipes, and it is still true today that the backbone of the Internet is in the hands of only a few major corporations.

The fear here is that these companies may find it desirable to implement differential pricing — charging more for certain kinds of traffic — and that regulation might be necessary to preserve the openness that has, so far, been a hallmark of the Internet.  ISPs might, for example, decide that voice-over-internet phone services compete with another part of the business of their parent telecoms and introduce higher prices for VOIP to choke off such services. UPDATE — As this report indicates, this is a very real concern that the FCC continues to monitor

A similar decision to charge more for high-bandwidth uses could be implemented in a misguided attempt to prevent video piracy.  Illegal video downloads, of course, use a lot of bandwidth, but so do perfectly legal file transfers.  The danger with these kind of “solutions,” whether they are differiential pricing, filtering or agreements between ISPs and content companies, is that they are likely to exclude too much content and too many users.  When this happens, the free speech goals which copyright is meant to serve are undermined, often in the name of copyright protection.

The recent announcement of a new anti-piracy strategy from the RIAA, and the continued behavior of YouTube toward repeat notices of copyright infringement, illustrates this danger.  The RIAA has agreements with some ISPs (it is not saying who) to cut off Internet access for those accused of repeated illegal downloading.  But we know that the RIAA has not been very careful about its accusations in the past, so there is a real concern that users will lose access based on inaccurate information and poorly substantiated charges.  And even before the RIAA’s new strategy is put in place, we know this kind of abuse is happening.  Here is a report from the ArsTechnica blog about a case where what is quite likely to be fair use — the posting of film clips on YouTube to  augment an online critical essay — has lead to the author having his YouTube account shut down because of DMCA notices that claim infringement but do not have to prove it or to take into consideration any of the myriad ways the uses on YouTube might be justified.  By disconnecting users after “three strikes” based on mere accusations, YouTube is already implementing the practice the RIAA is negotiating with ISPs.  And we can see that that process is ripe for abuse.

The moral here is that regulation of the Internet is a complex topic.  Reliance on the market alone will not always guarantee that the ‘Net will remain open and accessible on an equal basis for all.  As more and more basic and vital information and services become Web-based, such access must be preserved.  The trick will be to figure out the right moment and the right way to preserve access, but the time will come when those decisions must be faced, since we have already seen that reliance on market forces and good will alone will not suffice.

President Bush signed the “Prioritizing Resources and Organization for Intellectual Property Act of 2008” — PRO-IP — on October 13, making it Public Law 110-403.  Since then a lot of news reports and blog posts have denounced the law, and I have noticed that a number of them claim negative aspects of the bill based on previous proposed versions.  One article last week linked to a report about the bill that was a year old and announced an aspect (about which I also wrote way back than) that actually was removed from the bill as it was finally passed and signed.  So I spent my weekend reading the actual text of the final, adopted version to see what was and was not still there.  The link above, from Washington Watch, includes both the text of the bill as signed and some analysis of it; here is a news report that also reflects the content of the bill correctly..

First, what is not in PRO-IP?  The two most objectionable features, from my perspective, were both removed before final passage.  First, earlier versions included provisions that would have dramatically increased the statutory damages available in copyright infringement cases.  The obvious purpose of this provision was to make more money for the RIAA when it sues file-sharers, since the structure of the change would have increased the potential penalty for infringing a music CD by 10 or 12 times.  That provision was not included in the final version.  Also dropped was a provision that would have allowed the Justice Department to pursue civil (as opposed to criminal) copyright lawsuits, a provision one commentator called making federal employees essentially pro bono lawyers for the content industries.  Because the Justice Department itself objected to the provision, it was omitted as well.

So what is left?  Plenty of taxpayer money being spent to help out a few large content industries is the short answer.  The Congressional Budget Office estimates that PRO-IP will cost over 420 million over four years.

PRO-IP has five sections.  The first, dealing with civil enforcement, lowers the procedural barriers for bringing infringement lawsuits, and it allows for seizure and  impounding of allegedly infringing products while the lawsuit is pending.  It also raises the statutory damages available for counterfeiting of trademarks.  The second section “enhances” criminal enforcement measures in a parallel way.  Primarily, it allows for the seizure and ultimate forfeit of infringing goods and any equipment used to infringe.  The potential effect here is that computer equipment used for widespread and wilfull infringement could be seized in exactly the same way that cars and boats used for drug crimes are now taken by law enforcement.

With sections III and IV, PRO-IP really starts spending your money; over 55 million dollars a year is explicitly appropriated to increase federal and local enforcement efforts.  At the top, a new executive branch official is created — the Intellectual Property Enforcement Coordinator, or IP Czar, as the position has been called — whose job is not to seek balance in our copyright law, as is arguably the role of the Registrar of Copyright, for example, but directly to expand the role of the federal government in protecting these private rights.  The section also creates a new enforcement advisory committee, replacing an earlier group with one whose membership is significantly expanded.  This group is specifically charged with gathering information about the alleged cost of IP infringement that is used by the industry in its lobbying efforts.  Now taxpayers will pay for that research.  Indeed, this federal official is essentially a Cabinet-level lobbyist for Big Content.

PRO-IP also requires the addition of over a dozen FBI agents to full-time IP enforcement; it is not clear if these are new agents or ones who will be reassigned from less high priority duties.  Twenty-five million dollars are also allocated for grants to local law enforcement to pursue those dangerous file-sharers, and 20 million to hire more investigators for the Department of Justice.  The bill closes with a “sense of Congress” section that heaps great praise on the content industries and repeats much of the propaganda that those industries distribute to support their claim that federal intervention to protect their out-dated business models is necessary.  It also informs the Attorney General of the United States that IP enforcement should be “among his highest priorities.”

As is probably clear, I think PRO-IP is still bad legislation.  The provisions that most threatened to have a further chilling effect on higher education have been removed, but the bill still, in my opinion, is a huge gift of money to the major content industries.  The result will be that taxpayers will shoulder even more of the burden of fighting their desperate battle to prop up a business model that both consumers and the technologies they use have passed by.  Instead of looking for new ways to enhance and market their products, these industries continue to resort to legal enforcement that is bound to fail (see this report from the Electoronic Frontier Foundation on the fruitless campaign of the past five years), and they have now convinced Congress to invest much more taxpayer money in that effort.