0001 1 2 3 4 5 6 7 FACILITATING ACCESS TO COPYRIGHTED WORKS FOR THE BLIND 8 OR OTHER PERSONS WITH DISABILITIES 9 10 11 12 Date: May 18, 2009 13 Time: 9:35 a.m. 14 Location: Library of Congress Center 15 Madison Building 16 101 Independence Ave, Southeast 17 Washington, DC 20540 18 19 20 21 22 0002 1 P R O C E E D I N G S 2 MARIA PALLANTE: Everybody, if we could all 3 sit down and get started we would appreciate it. My 4 name is Maria Pallante. I'm the Associate Register for 5 Policy and International Affairs here at the U.S. 6 Copyright Office. And a special appreciation and thanks 7 to all of you who have traveled here today to be with 8 us. 9 I would like to give you a quick overview of 10 the day, and then I will introduce the government team 11 sitting up here. And then I will hand it over to 12 Marybeth Peters, the Register of Copyrights, for opening 13 remarks. 14 If you haven't found the restrooms, you go 15 out the door and make a left. If you haven't found the 16 cafeteria, you go out the door and bear to your right. 17 We're going to go until 10:00 -- we're going to start at 18 10 with the panel overview, the statements from you. 19 We're going to go until 11:30. We'll probably have a 20 quick break. There's not one on the agenda, but we're 21 anticipating that we'll all need one at that point. And 22 then we'll go again until 1 p.m. and we'll break for 0003 1 lunch until 2:30. The cafeteria is open to the public. 2 You're welcome to use it. You're welcome to go outside, 3 as long as you're all back by 2:30. 4 So, to my left is Michael Shapiro, attorney 5 advisor, U.S. Patent and Trademark Office, and head of 6 the U.S. Delegation for the SCCR. To his left is Neil 7 Graham, Attorney Advisor U.S. Patent and Trademark 8 Office and a member of the Delegation as well. To my 9 immediate right is Michelle Woods, Senior Counsel for 10 Policy and International Affairs here at the U.S. 11 Copyright Office and a member of the Delegation. And 12 Steven Tepp to her right, also Senior Counsel for Policy 13 and International Affairs, U.S. Copyright Office and a 14 member of the Delegation. 15 Sitting behind us in the corner is -- are 16 Jackie Morales, also from the Patent and Trademark 17 Office, legal staff. And Paula Pinha, who many of you 18 have spoken to on the phone, from the U.S. Copyright 19 Office, legal staff. And buzzing around is Lisa Oates, 20 who is our legal assistant. And, if anybody has any 21 other questions, feel free to grab her. 22 So, our first panel this morning will focus 0004 1 on the existing statutory regime. We'll follow that 2 with a discussion of existing initiatives. And after 3 lunch we'll get to possible actions and solutions to 4 enhance access. And with that I'll turn it over to the 5 honorable Marybeth Peters, Register of Copyrights, who 6 has been Register of Copyrights here since 1994, for 7 opening remarks. Thank you. 8 MARYBETH PETERS: Good morning. I would like 9 to add my thanks to all of you for coming today. The 10 Copyright Office is extremely pleased to host this 11 public meeting, and I'm happy that we're -- for some of 12 us in a place where we have windows. It makes a 13 difference to me to be able to at least see the light. 14 And I think we're going to be enlightened throughout the 15 day with all of the remarks that you are going to be 16 making. 17 Obviously the topic is facilitating access to 18 copyrighted works for the blind and other persons with 19 disability. And we very much appreciate that some 20 members of our panel and some of the audience have 21 traveled significant distances to be here today. It is 22 going to be a long day. But, in fact, probably not long 0005 1 enough, given the complexity of the legal and practical 2 challenges we will be discussing. 3 The meeting today is part of a diligent and 4 comprehensive process of fact finding undertaken by my 5 office and the United States Patent and Trademark Office 6 to prepare for the forthcoming meeting of the standing 7 committee on copyright and related rights at the World 8 Intellectual Property Organization. That meeting will 9 take place in Geneva on May 25th to 29th. And member 10 countries will exchange information about national laws 11 and experience relating to access to copyrighted works 12 for the blind. 13 In recent months the Copyright Office and the 14 Patent and Trademark Office have held informal meetings 15 with stakeholders, including members of the blind 16 community, book publishers. And the whole purpose of 17 those meetings has been to gain a better understanding 18 of the confluence of factors that effect the 19 availability of accessible formats. 20 From the implementation of the Chafee 21 Amendment and disabilities laws to promote -- or to 22 bring about the promise of technology, and to look at 0006 1 some of the frustrations of inadequate resources. 2 On March 26th we commenced a formal 3 consultation process. There were notice of inquiry 4 published in the Federal Register requesting written 5 comments and reply comments on a wide range of 6 questions. 7 We thank the many nonprofit organizations, 8 libraries, commercial businesses, and private citizens 9 who took time to write and contribute to the record, 10 including the National Federation of the Blind, the 11 National Library Service for the Blind and Physically 12 Handicapped, the Association of American Book 13 Publishers, the DAISY Consortium, RFB&D, Public 14 Knowledge, Benetech, Accessible Publishing, the American 15 Library Association, Knowledge Ecology International, 16 the Electronic Frontier Foundation, the Software and 17 Information Industry Association, Motion Picture 18 Association and others. These comments form the basis 19 for the meeting today and may be viewed on our website 20 at www.copyright.gov. 21 We are fortunate to have diverse interests 22 and perspectives at the table today, including authors 0007 1 who create books, the book publishers who create viable 2 markets, the libraries who provide critical services to 3 the blind, and the nonprofit entities who adapt works 4 into accessible formats, and organizations who are 5 concerned with the public interest and well-being of 6 whose who are not otherwise represented. 7 As we listen to these esteemed speakers, we 8 will focus on two overarching themes. One, how do 9 people or entities in the United States utilize or share 10 accessible copies of United States works within the 11 United States? 12 Second, how do people or entities in the 13 United States access foreign works or share accessible 14 copies of U.S. works across borders? 15 Today we start from the premise that 16 improving the quality, quantity, and timeliness of 17 accessible materials for the blind or other persons with 18 disabilities is an important goal that requires and 19 deserves continuous effort. We invite our speakers to 20 think creatively and collaboratively to this end. And I 21 and my colleagues here all look forward to hearing from 22 all of you. So, thank you, and let's begin. Back to 0008 1 you. 2 MARIA PALLANTE: Thank you, MaryBeth. 3 Okay. What I'd like to do now is introduce 4 the participants. And on my left going clockwise around 5 the room we have Paul Aiken from the Authors Guild. We 6 have Rashmi Rangnath from Public Knowledge. We have 7 Allan Adler from the Association of American 8 Publishers. We have Scott LaBarre from the National 9 Federation of the Blind. We have George Kerscher from 10 the DAISY Consortium; Brad Thomas, RFB&D; Gary Mudd, 11 American Printing House for the Blind; Ed O'Reilly from 12 National Library Service for the Blind and Physically 13 Handicapped; and last but not least, Peter Chapman from 14 Pearson Publishing. 15 I will start with Paul for opening 16 statements. You have five minutes. And two points on 17 this, we are being recorded because we will have an 18 audio file on our website with the transcript. There 19 will also be a written transcript. So, please speak 20 clearly and take your time. With that said, you have 21 five minutes, and if you exceed your five minutes, 22 you'll hear a very polite bell. Maybe Paula could 0009 1 demonstrate that for us. 2 (Bell rings.) 3 MARIA PALLANTE: And, if you hear that if you 4 could please stop talking, we would appreciate it. 5 Because, if we don't get past the opening statements, we 6 won't have time for questions and discussion. 7 So with that, Paul, why don't we start with 8 you. 9 PAUL AIKEN: Okay. Thank you, Maria. It's a 10 pleasure to be here this morning and today to discuss 11 this important issue. Let me start briefly with a 12 history of the Authors Guild for those who don't know 13 it. We were founded in 1912 as the Authors League of 14 America. Our mission is to look out for the business, 15 and copyright contractual interests, and the free speech 16 interests of authors. The Authors League soon after its 17 founding became a number of organizations, which you're 18 probably familiar with, the Authors Guild, Dramatists 19 Guild, Writters Guild East and West. We represent book 20 authors and freelance journalists, but primarily book 21 authors. And they publish in every genre, fiction, 22 nonfiction, textbooks, academic authors, are all 0010 1 represented in the Guild. And we have more than 8,500 2 published authors as our members. We're the largest 3 organization of book authors in the United States. 4 Authors want everyone to have access to 5 books. We always have. It -- authors love readers. 6 It's why we're in the business. For this reason for 7 decades authors donated rights so that braille editions 8 and audio versions could be created for the visually 9 impaired and the print disabled. And then in 1996, of 10 course, the Chafee Amendment gave an explicit copyright 11 exception for such uses. But our donations continue 12 today. There still are clauses in book contracts which 13 says that authors surrender royalties for the blind and 14 physically disabled that go beyond the bounds of Chafee. 15 However, saying that, we also have economic 16 rights that are, of course, important to us and that we 17 have to protect. And the challenge in moving from print 18 to digital couldn't be clearer. Anyone who reads one of 19 the fast disappearing newspapers knows exactly what's 20 going on. As print moves to digital, it is exceedingly 21 hard to land on a viable business model. Newspapers, it 22 is said, are disappearing in the United States at the 0011 1 rate of one per week. Even the New York Times is 2 challenged in this environment. And there are questions 3 about whether it can, in the long run, avoid bankruptcy, 4 which is just a shocking statement for those of us who 5 grew up with newspapers and value them. 6 Magazines are in an equally difficult 7 position as they move from print to digital. In today's 8 New York Times you can read about WIRED Magazine 9 published by Chris Anderson who knows as much about the 10 digital divide and how to make money as anyone could 11 imagine. He is the one who popularized the concept of 12 the long tail in publishing. And even he is struggling 13 in this environment. 14 So, this is the environment and the challenge 15 that we face in book publishing. We're making the leap 16 to digital, whether we like it or not. And we've got to 17 land on a viable business model. 18 A little more context, the history of 19 electronic book rights goes back importantly to 1993, 20 when Random House -- and as now the largest trade book 21 publisher -- issued a new contract, which caused a huge 22 controversy in the industry. We called in a land crab 0012 1 on the electronic frontier. And Amazon was essentially 2 taking -- wanted to take all rights for creation of 3 electronic books. It -- we saw the problems immediately 4 with that, as did literary agents and anyone paying 5 attention in the industry. One of the big problems, 6 beyond the meager royalties that Random House was 7 offering at the time, was that Random House wanted to 8 take electronic rights; not just for display, but for 9 multimedia uses, for audio and visual uses. And we saw 10 immediately that there was a conflict with the rights 11 that authors placed with others, with audiobook 12 publishers, with movie producers. These rights are 13 distinct. They're exclusively placed with others. And 14 an electronic book that bundles in with it audio rights 15 would challenge these other contracts that the authors 16 had exclusively placed elsewhere, in which they rely on, 17 in which -- and audiobooks now represents a billion 18 dollar industry, far bigger than the electronic book 19 industry. 20 So, a compromise was arrived at, and that 21 compromise was that the print book publisher in almost 22 all cases does get eBook rights, but it's the pure text 0013 1 electronic right, that is -- 2 (Bell rings. ) 3 PAUL AIKEN: -- the right to display -- I'll 4 wrap up in a moment -- the right to display the eBook in 5 digital form. That does not come bundled with any audio 6 or visual rights. Those rights are retained by the 7 author and agent and must be explicitly granted in order 8 for those rights to be exercised -- in order to prevent 9 a conflict with rights that the author may have placed 10 elsewhere. Thank you. 11 MARIA PALLANTE: Thanks, Paul. Rashmi. 12 RASHMI RANGNATH: Thank you, Maria. I'd like 13 to thank the Copyright Office for inviting me to be on 14 this panel. I represent Public Knowledge, a nonprofit 15 public interest advocacy organization that represents 16 the public's stake in access to knowledge. 17 I want to address the issue of mainstream 18 access today. As many in this panel will probably 19 testify and comments submitted in these proceedings 20 reflect, the blind deserve mainstream access, that is 21 the ability to walk into a book store and a buy a book 22 like anybody else, get it at the same time, and 0014 1 approximately at the same price as sighted individuals. 2 We believe that adaptive technologies will 3 enable mainstream access and should be encouraged. 4 Adaptive technologies enable the blind to access eBooks 5 and digital publications at the same time as sighted 6 individuals. With the movement of digital -- with the 7 movement of more books and publications to digital 8 formats, adaptive technologies hold a promise to deliver 9 mainstream access. 10 The Copyright Office has acknowledged this in 11 its 2003 and 2006 1201 rulemaking proceedings, when it 12 said that the eBook holds tremendous value for the 13 blind, although as an industry -- it needs industry. 14 The other benefits of adaptive technologies 15 are that they're not constrained by limitations in 16 Section 121, in that anybody can make these 17 technologies, and anybody can access them -- access 18 books using them without qualifying under the 19 definitions of the blind under the Chafee Amendment. 20 They do not violate any copyrights, as they facilitate 21 noninfringing use. Again, the office acknowledged this 22 position in the 2003 and 2006 rulemaking proceedings -- 0015 1 1201 rulemaking proceedings. 2 The other important benefit of adaptive 3 technology, is that it would overcome the resource 4 crunch which many have said exists in converting books 5 to accessible formats. So, we think that adaptive 6 technologies should be encouraged, and market practices 7 that hinder the use of adaptive technologies should be 8 discouraged. For example, although technology vendors 9 make available products that have features that work 10 with adaptive technologies -- for example, eBooks come 11 with these features -- but they are disabled because of 12 pressures of publishers that features such as text-to- 13 speech interfere with copyrights and audiobook rights. 14 A lot of eBooks come wrapped in DRM that prevent use of 15 adaptive technologies. And the office has provided an 16 exemption in the 2003 and 2006 proceedings to allow the 17 blind to circumvent this DRM in order to be able to 18 access digital publications. 19 We believe that these exemptions should be 20 made permanent. The DMCA should be amended to allow 21 circumvention, in order to access eBooks and other 22 registered publications. And there should be an 0016 1 amendment to Section 1201(a)(2) in order to enable 2 others to market technologies that would enable 3 circumvention. Thank you. 4 MARIA PALLANTE: Thank you. Allan. 5 ALLAN ADLER: Thank you. I just want to take 6 a couple of minutes to focus on the two lessons that we 7 tried to draw from the past 13 years of work that I have 8 been involved with on behalf of the Association of 9 American Publishers and its members in the book 10 publishing community, in attempting to meet the needs of 11 individuals with print disabilities. 12 From the very beginning we've talked about 13 that issue as if we were talking about a homogenous 14 group of people, as if we were talking about a single 15 set of problems to be met presumably with a single set 16 of solutions. And, indeed, the Chafee Amendment was the 17 beginning of the application of a regulatory approach to 18 attempting to deal with these needs. As a regulatory 19 approach that in many ways assumed it was a singular set 20 of problems to be dealt with, and that most of the 21 people who were in need of assistance were dealing with 22 those issues in the same context and in the same way. 0017 1 But over the years we have learned that 2 that's clearly not true. We have spent a lot of time 3 dealing with state legislatures, enacting legislation to 4 address this issue. We've spent a fair amount of time 5 working with Congress and Department of Education to 6 address these issues. And we find that, when we're 7 talking about them on different levels of government, 8 when we're talking about them on the one hand in the 9 context of the needs of students who have print 10 disabilities, as opposed to individuals who are not 11 talking about the needs that they have in connection 12 with the academic endeavor but simply as part of their 13 ability to fully enjoy their lives. We're talking about 14 people in different contexts and different circumstances 15 and, therefore, the solutions aren't all the same. 16 So, one lesson we have learned is that the 17 rapid development of technology and our evolving 18 understanding of human disabilities can quickly change 19 and challenge the basic assumptions underlying even the 20 most carefully crafted regulatory approach to meeting 21 the accessibility needs of individuals with print 22 disabilities. And that leads to assertions that the 0018 1 supporting law or regulation is outdated in its scope 2 and should be applied more broadly to effectuate current 3 needs. And we're seeing those calls now in connection 4 with the Chafee Amendment. 5 But more importantly, over the 13 years, this 6 evolution of technology development, and our 7 understanding of human disabilities, and our approach to 8 defining them has now changed the underlying assumptions 9 that justified the existence of a regulatory approach in 10 the first place. And it seems to point in the direction 11 of moving steadily and surely towards a market-based 12 approach as the best way to deal with these issues. 13 So, in that context the other lesson we have 14 drawn -- and I hope to have further opportunity to 15 discuss -- is that one-size-fits-all solutions aren't 16 necessary, they aren't appropriate, and they aren't 17 sufficient to meet the accessibility needs of all 18 individuals with print disabilities. And imposing such 19 solutions by regulatory mandates will only delay the 20 introduction of more effective market-based responses. 21 Thank you. 22 MARIA PALLANTE: Thank you, Allan. 0019 1 Mr. LaBarre. 2 SCOTT LEBARRE: Greetings. I am here today 3 on behalf of the National Federation of the Blind. In 4 particular I bring you greetings from our president, 5 Dr. Marc Mauer, who has asked me to come here today and 6 speak on behalf of blind and visually impaired 7 individuals in this country. 8 And it is hard for me, in a situation like 9 this, to sort of keep separate the objective issues and 10 the intellectual issues from the personal. Because I 11 am, indeed, one of the individuals affected by this 12 discussion. 13 When we talk about copyright, copyrighted 14 materials and getting greater access to them, we are 15 talking about people like me and the people that I 16 represent. And it is a crucial issue for us because 17 there is the old adage that knowledge equals power. And 18 it gets thrown around so much that I think it sometimes 19 loses its potency. But it is, indeed, one of the 20 fundamental truths of being involved in the human 21 experience. 22 As a class of people, blind people have been 0020 1 limited in our access to knowledge and, therefore, our 2 access to power. Technology gives us a framework, a way 3 to access knowledge that we have never previously had. 4 I understand that some complex issues of copyright, and 5 legality, and protection of intellectual property arise 6 out of technology. However, for us the issue is quite 7 simple, we insist upon access to as much information and 8 knowledge as possible. And we will work very vigorously 9 to confront any artificial barriers to accessing that 10 knowledge. 11 And I look forward to the discussion today 12 about specifically how we can, perhaps, develop a 13 flexible, regulatory scheme that would protect 14 intellectual property, yet give us the access that we 15 demand and deserve. 16 It would be ironic that, with the evolution 17 of technology that has the promise of bringing so much 18 more to our fingertips, that the same technology would 19 be used to limit and restrict our access to knowledge, 20 and, therefore, our access to power. 21 So, I want to thank the Copyright Office and 22 all the other governmental entities that are sponsoring 0021 1 this today for allowing us to participate, and allowing 2 the voice of the blind be heard. 3 MARIA PALLANTE: Thank you, very much. 4 Dr. Kerscher. 5 GEORGE KERSCHER: Thank you, very much for 6 having me here today. The DAISY Consortium is made up 7 of libraries and organizations worldwide who provide 8 services to people who are blind and print disabled. 9 And I do come with a worldwide perspective. 10 There's a fundamental, a principle that I 11 think will help guide things along, and that's that we 12 envision a world where people with disabilities have 13 access to information and knowledge at the same time and 14 without additional costs. 15 We've used the term, the same book at the 16 same time at the same price. And that really does kind 17 of sum it up. We are absolutely committed to working 18 hand-and-glove with publishers as partners. We want to 19 see the mainstream market solution. We also believe 20 that there's a need for a copyright exception to make 21 sure that materials are available in all sectors. 22 The same book is a loaded term, because we 0022 1 want to be able to have full function access -- a fully 2 accessible book, not something that is crippled or 3 partially usable. We want to be able to use the same 4 features and functions as the nondisabled population 5 enjoy. And we've been burned in this respect, because 6 companies have come out with product and it's -- doesn't 7 work for people with disabilities. And their marketing 8 department will hang the term accessible on top of it, 9 accessible this, accessible that. It has maybe one or 10 two accessibility features, and yet their marketing 11 department is very good at selling these things. And it 12 -- they convince the general population that this is, 13 indeed, accessible to everybody when it's not. So, same 14 book, we need full functionality. 15 The Chafee population that's being served 16 today is based on the physical disabilities. And what 17 we're finding in our society, and many of the comments 18 that have come in are talking about people with learning 19 disabilities that need to be served. I believe that the 20 functional disability should be referenced. If people 21 have a disability that prevents them from effectively 22 using print, then they should be allowed to access 0023 1 information under the copyright exceptions. I think 2 this is just one of the fundamentals of equality that we 3 believe in in the United States. So, I'd like to see us 4 move in that direction. 5 The specialized formats is one of the items 6 that is brought up. And the DAISY Consortium has worked 7 on developing modern technologies and techniques. And 8 we're seeing the DAISY technology being moved into 9 things like the epub standard. So, the DAISY XML and 10 the DAISY navigation model is sitting there in the 11 commercial products in digital publishing. And remember 12 that we have the goal of the same book at the same price 13 at the same time. So, we're using technology 14 strategically to make sure it's accessible to everybody 15 to -- so the formats that should be allowed are those 16 that are universally designed and accessible to people 17 with disabilities. Those may be adopted by the 18 mainstream community. And that would be great, because 19 it gets us closer to our goal and our principle of equal 20 access. 21 So, the epub specification was developed by 22 the publishing community and technology companies. And 0024 1 many of us in the disability community were there. We 2 were committed from the beginning to accessibility. And 3 built into the standard are statements that the -- this 4 information is intended to be rendered by user agents, 5 reading systems in the best way that's most palatable 6 for the person with the disability. That might be 7 through refreshable braille. We know that many of the 8 displays have large character fonts. And, of course, 9 text-to-speech is one of those options. And all of 10 those have been -- 11 (Bell Rings.) 12 GEORGE KERSCHER: -- anticipated in the epub 13 standard. We know that the Authors Guild is selling 14 recording rights, but the fundamental rights of access 15 to the information, I think, should be preserved, and 16 text-to-speech should be an option that's available to 17 all people reading eBooks. Thank you. 18 MARIA PALLANTE: Thank you. Mr. Thomas. 19 BRAD THOMAS: Good morning, I'm Brad Thomas 20 with Recording for the Blind and Dyslexic. And I just 21 want to thank the Copyright and Patent Offices for 22 including us in this conversation. We're excited to be 0025 1 here, and look forward to this dialogue. 2 I want to speak briefly for a moment about 3 the Chafee Amendment specifically and a couple of 4 technical issues that we've experienced with the 5 implementation of the Chafee Amendment, and then speak 6 more broadly to issues of copyright exemptions and the 7 like. 8 As most of you know, RFB&D was heavily 9 involved with many other organizations in the mid 90s in 10 crafting and implementing the Chafee Amendment. And we 11 believe that it's been a huge success in facilitating 12 access to accessible materials for blind, visually 13 impaired, and other print disability populations. 14 Prior to the Chafee Amendment, copyright 15 permissions had to be acquired in an individual process 16 that was quite onerous on the publishers and on RFB&D, 17 and created significant delays for individuals who 18 needed the materials unnecessarily. 19 Passage of the Chafee Amendment, however, 20 granted us and other authorized entities proactive 21 access to these permissions, greatly expediting the 22 availability of materials to individuals that needed 0026 1 them. And we've worked very carefully with the 2 publishing community and disability advocacy 3 organizations to implement the Chafee Amendment in a way 4 that guaranteed access to individuals who legitimately 5 are eligible and have need of these materials, while 6 protecting the legitimate rights of authors and 7 publishers. 8 There have, however, arrive -- arisen two 9 particular issues related to the implementation of the 10 Chafee Amendment that I would like to address. The 11 first is the area of the eligible population. And we 12 believe that that area is in need of significant 13 clarification. And, of course, I'm talking about the 14 eligibility of those with learning disabilities under 15 the Chafee Amendment. We have certainly taken the 16 position that certain students with learning 17 disabilities qualify under the physical limitations 18 clause based on our understanding from the research that 19 learning disabilities are based on physiological 20 impairments. Obviously we believe that research backs 21 up that interpretation, and we believe that these 22 individuals have a legitimate need for accessible 0027 1 content, particularly in the case of K-12 students where 2 their access to that content is guaranteed by other 3 federal laws. But we certainly acknowledge that this is 4 a gray area. We've worked carefully with other 5 stakeholders to address this, but I believe 6 clarification from the appropriate entities would be 7 useful. 8 The second area is the area of competent 9 authority, in other words, who has authority to certify 10 a student or other individual as having a print 11 disability. Similarly we believe that the requirement 12 that a medical professional certify someone with a 13 reading disability is not supported by the research, and 14 that clarification would, again, be useful in this 15 circumstance. Again, it creates conflict with other 16 federal laws, for example, IDEA, where educational 17 professionals are primarily responsible for identifying 18 students with special needs and determining what 19 accommodations are appropriate. So, bringing copyright 20 law into line with those federal civil rights statutes 21 would be an important part of this process. 22 I also want to speak more broadly now about 0028 1 the existence of the copyright exemption and calls for 2 significant changes to it. I want to be very clear, 3 RFB&D is greatly encouraged by the development of 4 market-based approaches, to facilitate wider access to 5 these materials for individuals with special needs, 6 where -- we have been in discussions with publishers, 7 with authors about how RFB&D can be partners with them 8 as they approach this issue. And we believe that great 9 promise is out there. But I also want to be clear that 10 I think there will always be, or for the foreseeable 11 future at least, be a need for RFB&D and other 12 organizations like ours. 13 While great strides have been made in 14 facilitating access in a broader sense from the 15 publishers, much work still needs to be done. And much 16 work even still needs to be done from the number of 17 smaller publishers that are in existence that don't have 18 the same technical capacity. 19 (Bell rings.) 20 BRAD THOMAS: And then one other quick 21 comment, I believe that organizations like RFB&D can 22 draw on our history of working with these populations to 0029 1 ensure that access to the materials lead to meaningful 2 outcomes, and that access is not just an empty promise. 3 Thank you. 4 MARIA PALLANTE: Thank you, very much. 5 Mr. Mudd. 6 GARY MUDD: Thank you, Maria. Good morning, 7 and on behalf of the American Printing House for the 8 Blind, we appreciate the opportunity to speak before the 9 group today. 10 I wanted to touch on a little history, as 11 well as our mission, before we make any comments. In 12 1879 the Congress passed the Act to Promote the 13 Education of the Blind and designated the American 14 Printing House for the Blind as the official supplier of 15 textbooks and other materials. Eligible students 16 include all students in the United States who meet the 17 definition of blindness, and who are working at less 18 than college level. 19 Today there are approximately 59,000 students 20 registered with the Printing House. And Congress 21 appropriates funds under this act that allows the state 22 and -- to acquire textbooks and other educational 0030 1 materials from APH. 2 After -- or APH works directly with service 3 providers, teachers, who assist students in developing 4 the skills they need to cultivate literature, and to 5 access text, tactile graphics, and other educational 6 content in accessible formats. APH's educational 7 experience and research affirms the continued need for 8 embossed braille and tactile graphics in textbooks. 9 In pursuing our mission of providing 10 accessible educational materials to K-12 students, APH 11 is deeply grateful for the Chafee Amendment. Excuse 12 me. Since 1996 the Chafee Amendment has been hugely 13 beneficial to us in providing accessible textbooks, 14 especially in braille, to students who are blind. 15 The amendment and idea to 2004, to permit 16 large type, has only expended -- expanded our 17 appreciation for the Chafee Amendment for reproducing 18 elementary and secondary textbooks. 19 Students with visual disabilities need timely 20 materials. They also need materials that truly provide 21 access to the complete educational content in an 22 appropriate format. This prescriptive approach could 0031 1 include hard copy braille and tactile graphics, the 2 large print, refreshable braille displays, and audio. 3 We too believe and are excited about the technology of 4 the day. But we also are -- want to keep a focus on the 5 delivery and production of braille, because many, many 6 students still use braille. Thank you. 7 MARIA PALLANTE: Thank you. 8 Mr. O'Reilly. 9 ED O'REILLY: Yes. Thank you for inviting 10 us. I'm from the National Library Service for the Blind 11 and Physically Handicapped, part of the Library of 12 Congress. We've been busy providing books since 1931 to 13 a population of blind, visually impaired, and physically 14 handicapped users patrons who must duly register. 15 We model ourselves specifically -- explicitly 16 after a decent, middle-sized public library we like to 17 say. And we also like to say that we provide for the 18 recreational and informational needs of our patrons. 19 That means on the whole we don't serve students. 20 Students, of course, are welcome to use our materials, 21 but we don't do textbooks. We leave that to sister 22 organizations. We don't do technical, scientific, and 0032 1 academic material. 2 We at the present time produce about 2,000 3 audiobooks annually in something, like, 2 million 4 copies, and additionally about 600 braille books. 5 That's probably a low number by the standards of the 6 gentleman to my right. And we don't know what to say 7 about that at the moment. I, too, think that the 8 braille initiatives should be promoted and that we 9 should do whatever is possible to encourage braille 10 literacy. 11 Meanwhile we're in the midst of a massive 12 change from audio cassette technology, analog 13 technology, to digital audio. We have just launched 14 what we'd call in-house our prelaunch test. It's the 15 final massive test of something like 5,000 machines, 16 among a select group of libraries, before the 17 implementation of mass production of these. The early 18 -- first -- this is just literally days since these have 19 been issued, and we've gotten some very, very positive 20 news so far. We anticipate some negative feedback. And 21 that's what the test is for, of course, because we don't 22 want to go to mass production, 26,000 machines a month 0033 1 for the first year with built-in imperfections. That 2 would be silly. 3 We are at the present time wrapping our books 4 in DRM. And they're heavily encrypted and password 5 protected. And we are also committed at the present 6 time to human voice renditions of books. 7 Our eligible population is one that we are 8 not -- we do not require -- we do not ask technological 9 sophistication. So, computer delivery is something that 10 we are making available of digital books, but we're not 11 requiring it. The machines are easy to use. And 12 anecdotal evidence has suggested that people are finding 13 them simpler and more accessible than our very 14 accessible C1 analog cassette machine. 15 This is a fascinating and fluid time. And 16 I'm here as much to be educated as to supply any 17 information that I can. Thank you. 18 MARIA PALLANTE: Thank you, so much. 19 Mr. Chapman. 20 PETER CHAPMAN: Good morning. My name is 21 Peter Chapman. I'm a product director for eBook 22 platforms at Pearson Education in Boston. As such I'm 0034 1 really a technologist with responsibilities to develop 2 some of the broad digital technologies Pearson provides 3 to its customer base. 4 For those of you unfamiliar with Pearson, we 5 are the world's leading education publisher in K-12 and 6 higher education. Our imprints include Scott Foresman 7 and Prentice Hall. Pearson is also the publisher of 8 Penguin Books, the Financial Times, and the Economist 9 Magazine amongst others. 10 Pearson appreciates the Copyright Office's 11 invitation to attend this hearing. And being the last 12 speaker on the panel, I'll just make a very brief 13 statement on my company's behalf. 14 My company's message to the Copyright Office 15 and the audience is quite simple and echoes that of some 16 of the preceding speakers. We simply believe that the 17 existing statutory provisions work against the 18 development of a robust market model. Despite the well- 19 minded intentions of its original framers, the Chafee 20 Amendment has at times been used by a variety of 21 organizations to pick and choose from millions of 22 dollars worth of content, and without compensation to 0035 1 the original publisher, or seller, or otherwise give 2 away access to product to users, some of whom may be of 3 only questionable eligibility. 4 Through our long time involvement in working 5 to create solutions for the students with disabilities, 6 we have come to believe that, while it was a functional 7 model in the predigital and prelearning disabilities 8 expansion, the Chafee exemption now stands between 9 publishers and the development of a robust market model. 10 Educational publishers such as Pearson now 11 labor under NIMAC Regulations whereby millions of 12 dollars are invested in creating a format that is not 13 immediately student user ready. The NIMAC Regulations 14 also stand between publishers and the development of 15 this true market model that would better serve the needs 16 of students in the future. 17 So, it is for these reasons that Pearson 18 Education does not support the extension of the terms of 19 the Chafee Amendment beyond the borders of the United 20 States. Thank you. 21 MARIA PALLANTE: Thank you. And the good 22 news is we're ahead of time. So we have more time for 0036 1 discussion. 2 I'd like to turn to my three colleagues who 3 have immediate questions. We'll start with Steven Tepp 4 who has a question about resources, and then we'll move 5 to Michelle Woods who has a question about DRM, and then 6 to Michael Shapiro who has some questions about market 7 public/private partnerships. So, Steve ... 8 STEVEN TEPP: Thanks, Maria. It may be more 9 than one question, but not too many, I hope. 10 I would like to spend some time exploring the 11 market economics of accessibility. It's evident from 12 the written comments that we've received that there are 13 issues on both the supply side and the demand side. 14 With regard to the supply side, I note 15 Mr. Tinsley's comments from the American Printing House 16 for the Blind seemed to speak for everyone when he wrote 17 his comment, inadequate resources effect every level. 18 Similarly Mr. Fruchterman of Benetech and 19 Bookshare concluded that, quote, there are insufficient 20 resources to fully solve the accessibility problem. 21 That lack of resources appears to be 22 exacerbated by the relatively high cost of producing 0037 1 accessible works, and duplicative production efforts 2 which there -- which then compete for the relatively 3 small demand for those works. 4 Dr. Mauer of the National Federation of the 5 Blind provided an example of this when he wrote in his 6 comment that many of the books in question are of such 7 limited interest that the effort to produce them twice 8 has the practical result of having them be unobtainable 9 for someone who would like to read them. Recently a 10 student reported that getting a transcripted copy of a 11 mathematics text cost him $2,500. 12 So, the first set of questions I'd like to 13 ask the entire panel is, in light of that rather grim 14 picture, do any of the organizations that provide works 15 in specialized formats do so at a profit? Do any 16 breakeven? Why is that? And I guess I -- like I said, 17 I invite anyone on the panel who would like to address 18 that, but probably first the organizations that actually 19 do provide accessible works. 20 MARIA PALLANTE: And let's just do this, if 21 you do want to comment, if you could just raise your 22 hand and we'll write your name down and from time to 0038 1 time we'll all out the names. So, we have Mr. LaBarre, 2 and Mr. Mudd, and Mr. Thomas. Okay. We'll start with 3 that. 4 Mr. LaBarre. 5 SCOTT LEBARRE: I can't precisely speak to 6 the cost of providing materials, because the role of the 7 National Federation of the Blind is not directly to 8 produce these accessible texts. However, our members, 9 and therefore the consumers of such services, know how 10 difficult it has been traditionally to get materials put 11 into an accessible format. The more technical the area, 12 such as mathematics, of course, the higher the cost. I 13 remember very well how difficult it was always to get 14 the math text I needed into braille in a timely 15 fashion. That is why, in my opening remarks I made the 16 comment that it would be a tragedy really that, with the 17 way that technology can fix this problem, that the same 18 technology be used to shutoff access. 19 The recent issue involving the Kindle 2 is a 20 primary example. We have a ready-to-use platform where 21 a blind person in the same exact manner could go and get 22 the device, order a book, and have access, as 0039 1 Mr. Kerscher said, at the same time -- same book, same 2 time, same price. Yet that access, in many regards now, 3 has been shutoff due to the argument that copyright is 4 infringed. And, so, I think that what we have to keep 5 in mind is, that the high cost of producing books in 6 accessible formats is coming down. And we have to make 7 sure that we do not create barriers that allow 8 technology to put books more easily into braille, more 9 easily into text-to-speech, et cetera. 10 I know, and I'm sure Recordings for the Blind 11 and Dyslexic and others would like to speak to this, but 12 traditionally the costs have been high. And these 13 organizations do not operate at a profit. The Library 14 of Congress, obviously, does not operate at a profit. 15 It is a -- it is our public library. And it is an 16 expensive public library, in the sense that it has to do 17 a lot more work to bring books to a person like me than 18 other libraries need to do. And, of course, because of 19 the very high costs of so doing, not the same volume of 20 books is available to me as to others. 21 MARIA PALLANTE: Okay. 22 Mr. Mudd. Thank you. 0040 1 GARY MUDD: Thank you. Let me speak a little 2 bit to the fact, we are as well a nonprofit 501(c)(3). 3 Let me talk a little bit about the production of a 4 braille textbook. And we'll use math, again, for 5 instance, because Scott talked about it as well. Math 6 and science are some of the hardest and most difficult 7 materials to transcribe into braille. We usually start 8 with a digital copy of the book. But the real expense 9 comes with the editing and transcribing of braille, 10 which is -- takes a human brain still. And, 11 unfortunately, what it does is that someone has to 12 interpret what the author has intended to teach, what 13 concept. Many times you get visually much more quickly, 14 but we have to transcribe into a meaningful, useful, 15 tactile graphic. And that is probably the most 16 expensive part of creating a book. And, as many of you 17 know, textbooks are becoming more and more visual. So, 18 we have to transcribe that concept into a meaningful 19 tactile graphic that kids can use. 20 True translation programs has -- have helped 21 us tremendously in transcribing a book from a digital 22 form into a braille form, but it's still the pictures, 0041 1 the charts, the graphs that take that human brain to 2 interpret; and, therefore, understand how a braille 3 reader best learns with tactile graphic that needs to be 4 used in the book. 5 I don't know whether that answers your 6 question, Steve, or whether that further complicates 7 things. But that's just some of what goes into the 8 transcription of a digital book into a useful braille 9 learning tool. 10 STEVEN TEPP: Okay. Thank you. It does 11 certainly go to answering why the costs are so high, at 12 least with -- specifically in regard to braille editions 13 of math and science textbooks. 14 If you could add anything as to the overall 15 economics of the market, that is can you sell the copies 16 you produce at a breakeven point, or -- you know, and if 17 not how do you continue to operate? 18 GARY MUDD: Oftentimes what happens is we 19 work with a network of transcribers nationwide. And 20 sometimes the finished product, the digital to braille 21 textbook, can -- or at least, if it's paid for with 22 state funding -- for instance, Texas, they choose -- 0042 1 they believe that the laws tell them to keep it within 2 the state boundaries. We pay transcribers for the 3 transcription and then we use that transcription to 4 duplicate the copies. 5 What has happened over the years, especially 6 in braille, is that in the -- well, let's say 50 years 7 ago before digital, many books that we transcribed into 8 braille were duplicated and sent throughout the 9 country. The first copy of a book was adopted by 10 several states and then duplicated, which kept the price 11 fairly low. 12 Today with sight-based decision making there 13 are many more titles needed. So, the same effort needs 14 to go into -- even those digital delivery has helped 15 tremendously -- transcribing it into a useful braille 16 learning tool with tactile graphics has kept the price 17 relatively high, as well as the number of copies. We do 18 no longer make 500 copies of a book, which can drive the 19 price -- or keep it down. Now oftentimes we make just 20 one, two, three copies of a book, which keeps it fairly 21 expensive. 22 Does that help clear up -- if I can answer 0043 1 anymore. 2 STEVEN TEPP: It does, thank you. 3 MARIA PALLANTE: And I believe Mr. Thomas 4 wanted to say something about cost and resources. 5 BRAD THOMAS: Sure. And I can make it 6 quick. It's certain we are a nonprofit as well and 7 certainly are not breaking even or, obviously, producing 8 a profit with our efforts. Similar to what you've heard 9 elsewhere, it is an expensive proposition, new 10 technology surrounding text, but also recording 11 techniques are bringing the cost down, but it's hard to 12 foresee a future where a breakeven point or a profit 13 point could be realized by us. I mean, I assume it's 14 theoretically possible, but it would be cost prohibitive 15 for the end user and would certainly violate our spirit 16 of being a nonprofit. 17 MARIA PALLANTE: Okay. I've got Allan Adler 18 and then Dr. Kerscher, if anybody else want -- and then 19 Mr. Aiken. Allan. 20 ALLAN ADLER: Well, I just wanted to point 21 out that, when you're talking about the issue of the 22 adequacy of available resources it's, again, a 0044 1 contextual issue that differs depending upon the 2 circumstances you're discussing it. When we're talking 3 about the regulatory approach that was ushered in under 4 the Chafee Amendment, it was not surprising that that 5 amendment was adopted by Congress with a basic 6 understanding that the immediate beneficiaries were 7 going to be the National Library Service, the American 8 Printing House, and the Recording for the Blind and 9 Dyslexic, all of which were -- over the years have 10 received appropriations from the Federal Government in 11 support of their work, as you might expect with a 12 regulatory approach. 13 But that always -- that hasn't always worked 14 in other sectors. For example, in leading up to the 15 IDEA Amendments of 2004, when we were working with a 16 broad array of advocacy groups for the disabilities 17 community, one of the notions was, that part of the 18 problem in getting timely access for students at the 19 elementary and secondary school levels, which is a very 20 highly centralized process with respect to how 21 instructional materials actually are selected and 22 purchased for that group. The fact was that you're 0045 1 still dealing with a situation where, if in the end 2 immediate need is going to be served under the Chafee 3 Amendment by, for example, scanning a textbook so that 4 that book can be used with text-to-screen translation 5 software, the scanning of it is something that is being 6 done in a just-in-time fashion, which means it's not 7 scheduled, it's not something that necessarily can be 8 accounted for in budgetary considerations in advance. 9 Especially because we were told that students can't be 10 tracked with respect to their need from one grade to 11 another because there are problems with that, 12 apparently, under civil rights laws. 13 When you shift your focus to higher 14 education, which is a much more decentralized process 15 with respect to how instructional materials are 16 gathered, the problem becomes even worse. Because there 17 every student ultimately is responsible for acquiring 18 whatever books the faculty member of a particular course 19 says are required reading. And that array of books, by 20 definition, is going to be far more diverse than the 21 array of books that are used at the elementary and 22 secondary school level. And that may include novels, 0046 1 and works of popular nonfiction, as well as a wide 2 variety of other works, some of which have difficulty in 3 terms of how they're reproduced. 4 Now, part of the idea of the IDEA Amendments 5 was that we wanted to move away from this patchwork 6 quilt of state law requirements, some of which ask 7 publishers for files in off-the-shelf electronic 8 formats, like Microsoft Word. Or some of them even 9 would prefer if the publisher gave them an ASCII file. 10 And the problem with that, of course, was that an ASCII 11 file is something that the publisher would first have to 12 create out of its own production files by stripping down 13 the kind of tagging activity that had created a more 14 sophisticated and versatile file. And the publisher has 15 no use for that file after creating it. And, when that 16 file is used as the source file for conversion in order 17 to create -- recreate the work in specialized formats 18 for use by people with print disabilities, the expense 19 involved in retagging an ASCII file is extraordinary, 20 because it's very laborious. 21 So, in the education context, when you're 22 talking about the availability of resources and you're 0047 1 relying upon the regulatory approach to supply the needs 2 of students with print disabilities, it shouldn't be 3 surprising to anyone that resources are scarce and less 4 than desired there, as indeed they are in just about 5 every other aspect of the educational endeavor. 6 MARIA PALLANTE: Well, thank you. 7 Dr. Kerscher, you had your hand raised and I'd like to 8 hear what you have to say in general. But if you could 9 start by responding to what Allan just said about 10 standards and formats. I don't think there's anybody in 11 the room that knows more about that than you. 12 GEORGE KERSCHER: So, in terms of reducing 13 the cost of making the alternative formats, and thinking 14 about our long-term goals of the mainstream model, 15 publishers have traditionally had one product print. 16 And, so, they've optimized their production processes 17 for that one single product. Now that the digital world 18 is upon us, they have more than one product to produce. 19 And they're reengineering their product processes. 20 So, if we can integrate into the production 21 flow what publishers do, standard operating procedures 22 that will accommodate needs for accessibility, then one 0048 1 of the byproducts of that can be accessible versions of 2 the books. And publishers have the -- you know, once 3 they have the information in a semantically rich XML 4 form, which is the way most publishers are -- they're 5 trying to get there, then the transformations that can 6 be done are automated. And this is no longer needing to 7 go to ASCII and things like this. So, that could all be 8 facilitated by helping publishers modify their 9 production processes. They could then feed that 10 information -- that content into libraries serving 11 people who are blind and print disabled. I'll call them 12 trusted intermediaries at this point. They can also 13 produce successful products themself for sale, which is 14 where we want to get to. 15 I think that braille is going to take some 16 hand work for a long time. If it's simple, we can 17 highly automate that production process. But if it's 18 math, and science, and tactile graphics, there's going 19 to be quite a bit of manual work. 20 Of course, the exceptions there -- copyright 21 exceptions that are available can be used in most 22 cases. But even here I think that the melding of 0049 1 publisher processes working hand-and-glove with 2 organizations serving people with disabilities is the 3 right place we want to get to. 4 And I think that the copyright exceptions, 5 and working with publishers, are the right space to be 6 in. I don't see that a copyright exception is opposed 7 to a mainstream model. I think they can work -- both 8 work together. And people with disabilities depend on 9 their libraries to get the information they need. 10 People with disabilities trust those libraries, and 11 working with publishers to build products for sale is 12 where we want to be. 13 MARIA PALLANTE: Thank you. Before we move 14 to Paul, Steve, are you -- do you have any follow up for 15 anybody who has spoken so far? 16 STEVEN TEPP: I'm going to ask a couple more 17 questions after we're done with this -- 18 MARIA PALLANTE: Okay. 19 STEVEN TEPP: -- line of thought. But I'll 20 hold them for now. Thanks. 21 MARIA PALLANTE: Then we'll go to Paul Aiken 22 and then back to Allan Adler. 0050 1 PAUL AIKEN: Thank you. Mr. LaBarre brought 2 up the Kindle 2, which I want to use to illustrate how 3 the emerging eBook technology and text-to-speech can be 4 used to create a real opportunity for trade books 5 anyway -- it doesn't really address textbooks -- a real 6 opportunity to really drive down the cost of providing 7 audio versions. 8 Again, this is -- this would be using the 9 Chafee Amendment in a creative but a justifiable way we 10 believe. And that would be to allow users with Kindles 11 to -- who have certified print disabilities to go to the 12 websites of some of the organizations around the table 13 here, members only websites, and activate their Kindle 14 so that text-to-speech would always be on. It would be 15 an override. 16 Right now what's going on with Amazon and its 17 Kindle 2, is it has two operating systems, with a text- 18 to-speech always on, the second, apparently is in beta 19 testing with text-to-speech that can be selectively 20 disabled where contractual rights call for that. 21 What we would like to see is a method where 22 Version A is available to users with certified print 0051 1 disabilities, and it would be simply a matter of 2 verifying that, activating your Kindle, text-to-speech 3 would be available to all those who have print 4 disabilities who have the Kindle, or who have a similar 5 device that might be developed by Sony or someone else. 6 We think this is a simple matter 7 technologically. It could be ready before Amazon has 8 its blind accessible Kindle ready. Right now the Kindle 9 is not accessible for the visually impaired -- for many 10 of the visually impaired, because there's no braille 11 keyboard, there's no audible menu commands. And this 12 has tremendous advantages for everyone, including making 13 immediately available to the blind hundreds of thousands 14 of books at a very low cost and driving down the cost 15 for all users. 16 MARIA PALLANTE: Thank you. 17 Allan, do the publishers agree with the 18 Authors Guild on that? 19 ALLAN ADLER: Well, the publishers, I think, 20 agree that -- with the Authors Guild to the extent that 21 there are a thicket of contract issues involved with 22 respect to figuring out exactly what the publisher can 0052 1 do with a book in terms of distribution and the 2 particular forum involved. 3 But actually I wanted to just tie onto 4 something that George said before about the need for 5 transition within the publishing community, because 6 that's another important area from which to perceive the 7 question about adequacy of resources. As George said, 8 publishers have had to keep one foot firmly planted in 9 the traditional area of print publication, because that 10 still is without question their primary market. Despite 11 the hyperbole of a few years ago, eBooks and audiobooks 12 combined have not amounted to even, I think, one percent 13 of the current market for publishing in the commercial 14 sector. 15 And, so, when you're talking about having to 16 retool in order to be able, for example, to meet the 17 requirements of an XML based format for producing these 18 materials, as the IDEA Amendments required, we were told 19 and we had hoped that, if we had a uniform approach, a 20 uniform standard, a uniform file format, it would speed 21 the ability of publishers to transition. It would also 22 lighten the level of work that had to be done by those 0053 1 who would be using the authority of Chafee to create 2 specialized formatted versions out of the source files 3 provided by publishers. But it hasn't all worked out 4 that way. Publishers have not done the transitioning as 5 quickly as we had hoped. And, in terms of the ability 6 of those who were supposed to use XML based source 7 files, files based on the NIMAC Standard, we found that 8 their learning curve didn't keep up. And you're now 9 giving a fairly sophisticated format to people who were 10 used to using ASCII files, or Word files, and are not 11 really able to use NIMAC files. 12 And then finally I'd also like to say that 13 there's an important point about the diversity within 14 the publishing community itself. We all know that 15 publishing is a sectorial community, so, education 16 publishing is different than trade publishing, and both 17 of those are very different than professional and 18 scholarly publishing. But you also have to look at the 19 range of economic situations of publishers. It's hard 20 to get really accurate statistics on this, but according 21 to the Census Bureau in 2006, there were over 3,000 22 separate firms that called themselves book publishers in 0054 1 this country. Well over two-thirds of them had fewer 2 than ten employees. So, you have to understand the 3 level of size. You're talking about something that 4 requires a certain amount of expense, in terms of the 5 ability not only to set up a business; but, if you have 6 to convert a business, if you have to transition your 7 production facilities in which you've already invested. 8 For some members of the publishing community this is 9 more difficult than others. 10 MARIA PALLANTE: Okay. Dr. Kerscher, coming 11 from your platform of same book, same time, same price, 12 could you respond to Paul Aiken's suggestion that the 13 Authors Guild work with certified websites so that 14 certified Chafee users can have text-to-speech 15 functional? 16 GEORGE KERSCHER: Well, this is a call for a 17 national registration of all people with disabilities. 18 And, you know, for example, Recording for the Blind and 19 Dyslexic, we have a registered user base. You know, 20 they're library cardholders. So, everybody would -- in 21 the United States with a disability would have to 22 register with RFB&D and then get access to the Kindle. 0055 1 I don't know if we want a national registry of all 2 people with disabilities. That seems pretty outrageous 3 to me. 4 A lot of people want to use the feature, they 5 have problems admitting that they have disabilities. I 6 know when I was, you know, starting to use a cane it was 7 embarrassing and it took me a long time to accept my 8 disability. 9 Older adults many times will never accept 10 that they've got a disability. They can't read any 11 longer. They just say, oh, I'm not blind, I just can't 12 read anymore. You know, and we saw in the recent 13 statistics from Kindle users they're over the age of 14 50. The Whispernet, which is drop dead easy to use for 15 people to get the books, they don't have to go through a 16 computer. I mean, that's huge. People could transition 17 easily into using text-to-speech when they need to. 18 Forcing them to register as having a 19 disability seems onerous. It also seems to reduce the 20 uptake of eBooks. EBooks have been long -- for a long 21 time trying to compete toe-to-toe against print books, 22 and print books, you know, the display is very good. 0056 1 So, Kindle has got an okay display, so does the Sony 2 e-Reader, but it still can't match a tree book. 3 The -- we want to have eBooks compete with 4 the features and functions that digital technology 5 enables, automatic lookup of words, text-to-speech, any 6 size font you want. And to start taking away features 7 and restricting that technology would reduce adoption of 8 a nascent industry. 9 MARIA PALLANTE: Okay. Thank you, very 10 much. It's almost 10 to 11. So, Steve, if it's okay 11 with you I'd like to switch gears and talk about DRM and 12 we can circle back. Does that work for you? 13 STEVEN TEPP: Okay. 14 MARIA PALLANTE: Yeah. 15 STEVEN TEPP: Can I ask one more? 16 MARIA PALLANTE: Sure. You can ask one more. 17 STEVEN TEPP: I want to try and bring the 18 discussion back to close full circle before we get too 19 far afield, so, I appreciate your indulgence. 20 It sounds to me like we're hearing two models 21 about how to work with -- between publishers and the 22 community that needs the accessible content. 0057 1 One is to have the publishers produce it 2 in-house in a form that can be used like the XML. The 3 other conceivably is to have some sort of licensing 4 arrangement where organizations like the American 5 Printing House for the Blind, or the RFB&D or others can 6 receive the content and produce it themselves subject to 7 some sort of licensing arrangement. And I'm wondering 8 if -- you know, the reason I asked the questions about 9 the market condition is to find out, is -- and this is 10 my bottom line question -- is there a viable market in 11 which either of those scenarios can produce a working 12 economic system for the voluntary private sector 13 production of accessible works? 14 MARIA PALLANTE: Mr. Chapman, do you want to 15 take that one? 16 PETER CHAPMAN: I was listening carefully as 17 you asked the question trying in my mind to say, do I 18 have an answer to that? And I think simply put, I don't 19 have an answer. My own company is working on something 20 called HTML book, which in the second panel I'll be 21 displaying. And one of the questions that we have is, 22 is -- what is the viable market for it? And the simple 0058 1 answer is, we don't know. 2 So, we have plans -- and, again, we'll talk 3 about this further in the second panel -- have plans to 4 roll it out in a measured fashion, and then we will have 5 a better answer. But just like any other company, we 6 can't heavily invest in expensive new technology and 7 process, as was pointed out by Mr. Kerscher earlier, 8 without some assurance that it's going to produce a 9 reasonable return on our investment. So, I don't know. 10 MARIA PALLANTE: Okay. Well, it does set us 11 up nicely for the second panel. 12 Does anybody else want to respond to that? 13 Mr. LaBarre. 14 SCOTT LEBARRE: Very briefly. I think I'm 15 going to respectfully suggest that this is the wrong 16 analysis and the wrong question. 17 MARIA PALLANTE: At the wrong time. 18 SCOTT LEBARRE: And -- well, perhaps, yes, if 19 we keep that framework. This is not a matter of expense 20 or cost, this is a matter of civil rights. This is a 21 matter of being able to participate fully in an 22 integrated fashion in our society. I'm not saying that 0059 1 cost doesn't matter, but cost cannot be the matter. 2 BRAD THOMAS: Can I add to that very quickly? 3 MARIA PALLANTE: Sure. 4 BRAD THOMAS: And this is what I was getting 5 at a little bit in the quick wrap up of my comments. 6 We're sort of approaching it in a cold calculation of 7 access, which in the area of education -- which is where 8 we're primarily focused -- is really the opposite of 9 where special education law is going. Special education 10 law has evolved, especially with the last iteration of 11 IDEA in 2004, from focusing solely on getting students 12 the accommodations they need, to determining whether or 13 not those accommodations are leading to meaningful 14 outcomes. In other words, if access is great, but if 15 access doesn't lead to anything else, then it's rather 16 meaningless. 17 So I think, in whatever discussion about 18 models that we have, we need to keep in mind that 19 organizations like ours, like APH, like others, have an 20 expertise here that is a value-add beyond simply getting 21 materials into student's hands. We want to make sure, 22 of course, that first and foremost they have the 0060 1 materials, but beyond that that they know how to use the 2 materials to maximize their education, and that their 3 teachers in particular have the knowledge to use those 4 materials appropriately. 5 MARIA PALLANTE: Okay. Michelle, the floor 6 is yours. 7 MICHELLE WOODS: Great. I'd like to turn to 8 a topic that was raised in a number of comments, and was 9 also mentioned, Miss Rangnath, by you during your 10 opening remarks. And that is the question of digital 11 rights management applied to eBooks, and specifically 12 the 1201 -- Section 1201 eBook exemption that already 13 exists. There are a number of proposals and comments to 14 make that exemption permanent, or to extend it to the 15 distribution of tools to circumvent digital rights 16 management or DRM. 17 And what we're interested in learning today 18 is more detail about evidence that supports a need 19 there, a need to go beyond the existing exception to add 20 these additional elements. What kind of evidence is 21 there that, at this point, the DRM on eBooks has 22 interfered with providing access for the blind and other 0061 1 persons with disabilities? 2 So, I guess I would direct this question 3 initially to the representatives of Public Knowledge and 4 NFB, because those organizations commented on this 5 issue. But we'd certainly be interested in hearing 6 anyone else on the panel about what kind of evidence is 7 out there that there's a need in this area? 8 RASHMI RANGNATH: Well, the representatives 9 for the blind are better positioned to say how eBooks 10 has actually interfered and not allowed them access to 11 DRM -- I mean, to the eBooks. But the Copyright Office 12 has also observed that a large number of eBooks are 13 wrapped in DRM and do not permit access to the 2003 and 14 2006 proceedings. And everyone here has testified about 15 lack of access to the blind and how the blind cannot 16 access books and other publications in the same manner, 17 and to the same extent as the rest of -- as sighted 18 individuals can. So, that proves a need for doing 19 whatever we can to enable such access. And, if 20 circumventing DRM is an easy way out and overcomes some 21 of the limitations in Section 121, then adopting laws 22 and regulations that would enable such access is a good 0062 1 thing. 2 SCOTT LEBARRE: And I would add that it is 3 truly an ironic situation when a text in one way or the 4 other is produced in an electronic format. And because 5 of -- the DRM screen reading software, for example, 6 doesn't work. And, therefore, I can't get access, or a 7 blind person can't get access. And that's why I believe 8 we would support the permanency of the exceptions in 9 this regard. 10 And it -- this is obviously something that 11 needs further discussion and would have to go through a 12 process, but it's just -- it is one of -- it's just 13 wholly ironic, when the book is there and you could use 14 it, but because of the DRM you can't. 15 And I guess another point, too, is, it's this 16 notion that by -- that some people bring to the table, 17 that using some sort of assistive technology is a 18 different kind of intellectual process -- or 19 intellectual property that has to be dealt with 20 separately. Using such assistive technology, for 21 example, or text-to-speech, it is our access. It is our 22 way of putting our eyes on the object. 0063 1 MARIA PALLANTE: All right. Let's take a 2 list for Michelle. So, I've got Mr. Chapman. Who else 3 wanted to speak? Dr. Kerscher. Oh, I'm sorry, Allan, 4 were you first? So, I've got Allan, Mr. Chapman, 5 Dr. Kerscher, anybody else? Okay. 6 ALLAN ADLER: AAP I think took the position 7 back in 2003 that the 1201(a) proceeding really was 8 mixing apples and oranges when it was be talking about 9 accessibility in the context of the use of technological 10 protection measures by copyright owners and when you're 11 talking about access for people with print 12 disabilities. And we had pointed out to the Copyright 13 Office at that time that Congress had already dealt with 14 the issue of access with respect to people with print 15 disabilities in the Copyright Act by the enactment of 16 the Chafee Amendment. And the rules of the 17 consideration of the 1201(a) proceeding under the DMCA 18 were that we were supposed to be looking at the question 19 of whether or not the prohibition against circumventing 20 access controls under that statute was adversely 21 affecting the use of a class of works. The Copyright 22 Office, I think in its attempt to do good in this area, 0064 1 basically had to distort its own interpretive rules for 2 that proceeding by changing it into a question of 3 looking at a class of users, rather than a class of 4 works. 5 Digital rights management technology is still 6 necessary for some types of distribution of works, but 7 not others. And the marketplace is the only place where 8 you can find out the extent to which that is going to 9 evolve. For example, with respect to audiobooks, for 10 some reason or another audiobooks recently have largely 11 foregone the use of DRM technology without any kind of 12 negative result, in terms of increased -- unauthorized 13 reproduction and distribution of works in those forms. 14 With respect to eBooks, I don't think that 15 the market has demonstrated that that would necessarily 16 be the case with eBooks without the use of DRM. We're 17 finding eBooks, in terms of unauthorized websites and 18 peer-to-peer file sharing are using eBooks. EBooks 19 themselves we have to remember are not the technological 20 product of publishers, but they're the technological 21 product of publishers collaborating with hardware and 22 software manufacturers. And at the moment the hardware 0065 1 and software manufacturers are in battle with each other 2 for proprietary dominance. So, eBooks have not been 3 able to rise to the level of consumer acceptance that we 4 otherwise thought they might, because you do not yet 5 have a situation for consumers with the use of an eBook 6 as seamless, transparent, and interoperable. As long as 7 you still have to worry whether a particular author's 8 work is available in a particular format that will play 9 on a particular device, you're not going to really be 10 thinking of that product as a substitute for the work in 11 print form. 12 So I think that, while we recognize there are 13 problems with accessibility that are caused by digital 14 rights management technology, particularly in connection 15 with the eBook. 16 One of the things that I pointed out in the 17 120 -- 2003 DMCA proceeding was, that that can be viewed 18 as a competitive factor in the marketplace. Whether or 19 not a publisher, whether or not an author chooses to 20 make the work available in that form so that it is 21 accessible through the use of read aloud functionality, 22 is something that consumers can decide is a good or bad 0066 1 thing. 2 But to decide that you're going to have to 3 require that either you forego DRM technology but still 4 put those products into the marketplace -- which places 5 at least some publishers at risk of seeing their 6 investment reduced by unauthorized reproduction 7 distribution -- or whether you're going to mandate what 8 kind of DRM technology can be used and how it can be 9 used, specifically with respect to literary works being 10 distributed in electronic form. I think is, again, a 11 product -- a byproduct of the regulatory approach that 12 probably we would be able to see reduced, if we moved 13 away from the regulatory approach to a more market-based 14 approach for making these types of products available. 15 MARIA PALLANTE: Mr. Chapman. 16 PETER CHAPMAN: I'd like to echo some of the 17 statements Mr. Adler just made. You talked earlier 18 about the diversity across the publishing industry, 19 Pearson, my company, is a very large company. We have 20 diversity within the company. We represent trade, we 21 have textbooks, higher ed, K-12, international and U.S. 22 And within my own company there is that same diversity 0067 1 of opinion as to how we should approach DRM. In some 2 cases, perhaps, it's very important, and in others it 3 isn't. And one of the things that I need to do as a 4 person who's involved with creating the platform on 5 which our eBooks will be produced, is I now pay more 6 attention than I ever did to the blogosphere. And I 7 religiously now read a lot of the comments on the 8 Kindle. And some of them are very well-informed, many 9 of them are foolish. But there is a common theme 10 amongst many of them, and that is what a wonderful 11 opportunity this is going to be for us to not pay for 12 our textbooks. In other words, inability to pirate 13 textbooks. And the sophomoric analysis goes, I mean, 14 like the eBook -- the reader costs 4 or 500 dollars, my 15 textbook costs 4 or 500 dollars per semester, therefore, 16 I'm all set. I'll just get one of these. 17 I think many of you are aware that the Kindle 18 allows, under certain circumstances, the right to copy 19 off the Kindle onto another device. 20 So, even if the eBook was intended only for 21 those with disabilities, which we would clearly support, 22 there is certainly the opportunity for it to leak into 0068 1 the broader market. And you only need to look at some 2 of the other industries, like the recording industry, to 3 know that things can rapidly deteriorate. And that 4 hasn't happened yet, but we're mindful of that. And 5 that's why it's an important issue to us. 6 MARIA PALLANTE: Mr. Kerscher -- or 7 Dr. Kerscher, sorry. 8 GEORGE KERSCHER: DRM is a complicated 9 issue. And the ability to crack a viable lawful copy of 10 an eBook that I cannot use because of the DRM, I could 11 crack it, and I have done that. 12 But we are trying -- we in the disability 13 community, in the libraries, all the trusted 14 intermediaries who have the potential to write such 15 software have not done so, because we want to work hand- 16 and-glove with the publishing community and not disrupt 17 the ecosystem that's evolving. So, we've not 18 implemented the nuclear threat. And that's kind of what 19 we refer to it as, is the implementation of that 20 exception. 21 We're trying to work on interoperable DRM. 22 We're beginning to see -- now that Kindle has got deals 0069 1 with the iPhone, the Adobe Digital Editions is using the 2 same DRM on the Sony e-Reader. And Adobe has a DRM 3 software kit that would allow interoperability. These 4 are all within a proprietary system. But what we have 5 to have are user agents reading systems, either PC based 6 or hand-held, that will allow a person with a disability 7 to use it effectively. So, sharing the certificates or 8 keys with different devices that could render the 9 content in an appropriate way. We have to get to the 10 point where we can interchange information on various 11 devices, trusted, you know, devices that are paying 12 attention to the digital rights management. 13 I think we have to have that kind of system 14 somewhere and -- until we get to the DRM free market, 15 which is where, you know, I think a lot of people would 16 like to see us. O'Reilly is not doing DRM on their 17 books. And there are many times a leader in this 18 regard. But I know that many publishers feel that it's 19 not yet time for DRM free materials. Thank you. 20 MARIA PALLANTE: Okay. I have a question. I 21 -- Mr. Martin Ningo (ph) of Accessible Publishing filed 22 extensive comments. He couldn't be here today. He 0070 1 said, government policy over the years has favored 2 institutional accessibility at the expense of mainstream 3 accessibility, with a result that more emphasis has been 4 given to nonprofit and government-produced materials, 5 rather than creating the right economic incentives for 6 books to be issued in accessible formats by the original 7 publisher. 8 So, in the next panel we'll ask the content 9 producers, what are the right economic incentives? 10 That's not for this panel. But my question really is 11 we've heard a range of the Chafee Amendment is working 12 beautifully, the Chafee Amendment is working fine, but 13 from here forward we should focus on market. And even, 14 I believe, Mr. Chapman, that the Chafee Amendment has 15 lived its purpose. 16 So, I invite anybody to kind of comment on 17 that general theme about the existing regulatory 18 provisions for the next few minutes. We'd like to hear 19 more about that. 20 Allan. 21 ALLAN ADLER: Well, let's go back for a 22 minute and look at the Chafee Amendment in 1996 when it 0071 1 was enacted. The Chafee Amendment was enacted in 1996 2 primarily with the objective of being able to eliminate 3 one of the things that added to the amount of time it 4 would take for people to be able to obtain literary 5 works in specialized formats that would serve 6 accessibility needs. And, so, by eliminating the need 7 to obtain permission from the copyright owner for 8 reproducing these works in specialized formats, of 9 course the question also came up -- although it was not 10 dealt with specifically in the statute -- does that also 11 mean that in addition to eliminating permission, you're 12 also eliminating any right to compensation? And 13 basically that is the way it has worked. Although I 14 note that in many instances, particularly in dealing in 15 the educational environment, people think that it is 16 fair to purchase, for example, a textbook, or to 17 purchase another book that's been assigned for 18 curriculum reading before one is going is to use that 19 book either to be scanned or to otherwise be retrofitted 20 in some way to meet the needs of a specialized format 21 aversion. The problem is, is that we had concepts that 22 in 1996 have evolved. And they've changed the way the 0072 1 law works entirely. 2 For example, when we talked about specialized 3 formats, what was inherently understood about this 4 specialized format, indeed the concept of the 5 specialized format, that it was a form of the work that 6 could be used by somebody with print disabilities that 7 would not be used by someone without those disabilities 8 in the marketplace. Because typically you required 9 special equipment in order to be able to use any of 10 those specialized formats. Whether you were talking 11 about cassette tapes, or digital text, or braille. So, 12 we've moved away from that notion now. Because I think 13 it's pretty clear, as technology has evolved, we're 14 coming to see that -- I would venture that the preferred 15 format today is some version of a digital talking book, 16 typically based on the DAISY Standard, but now even 17 based on the NIMAC Standard, something that for the 18 publishing community is coming increasingly an 19 uncomfortably closer to what a commercial eBook or a 20 commercial audiobook provides. So, we've moved away 21 from the concept of specialized format. 22 We've also moved away from the concept that 0073 1 was understood in 1996 as to who -- exactly what was the 2 definition of the population that was supposed to 3 benefit from this copyright exemption. That population 4 was defined in terms of the print disabilities community 5 as that population had been defined for the National 6 Library Service under existing statutes and 7 regulations. 8 What we've now seen, however, is constant 9 pressure to evolve towards a broader population, not 10 print disabilities, but a population with learning 11 disabilities. Depending upon whose estimates you look 12 at, in any event, are exponentially larger than the 13 population that was understood in 1996 to constitute the 14 print disabilities community. 15 Now, that's an important fact, because an 16 inherent principle of the Chafee Amendment, an 17 underlying premise, was that there really was no 18 marketplace for specialized formats. It was noted in 19 testimony by the Register at that time that braille was 20 something that was almost entirely subsidized by the 21 government. It wasn't produced by private entities in 22 any kind of a commercial capacity. And the same thing 0074 1 was true for the other specialized formats that were 2 specifically identified in the Chafee Amendment and 3 contemplated as the kinds of things that required 4 special equipment to use, and would not be used by 5 ordinary consumers. 6 But now as we move, not only to a change in 7 the population, of an exponentially larger population 8 that could, in fact, constitute a market -- a 9 legitimate, viable market for accessible books to be 10 produced in the first instance; and as we've moved 11 towards a specialized format that no longer requires 12 specialized equipment in every instance to be utilized 13 but, in fact, can be utilized and even might be 14 attractive to be utilized by ordinary consumers. You 15 have to ask the question of whether or not the 16 regulatory approach, and the framework, and the 17 underlying premise of that approach in the Chafee 18 Amendment still have general validity, especially such 19 that you would want to extend them for application 20 overseas. 21 MARIA PALLANTE: Thank you. 22 Mr. O'Reilly, could I ask you to explain to 0075 1 us in a little more detail about the population that you 2 serve? Are they folks that are happy with specialized 3 equipment and are set in their ways, or are they a 4 potential market, are they a mixed crowd, who are they? 5 ED O'REILLY: Well, I think you'd get a 6 number of different answers to that depending on who you 7 ask. And I think we have -- our information is -- what 8 word could I use -- imprecise. But our sense is that 9 our readership on the whole is about, I think, 65, 70 10 percent over the age of 60 or 65. Our readership is, 11 generally speaking, technologically unsophisticated. 12 Our readership is, generally speaking, close to 13 indigent, and perhaps would not constitute any kind of a 14 market on that basis. 15 I think we also make a distinction between 16 dyslexia that is organically caused, as against a 17 psychological issue of -- I -- I'm sorry, I'm out of my 18 depth in the ins-and-outs of dyslexia. But that's the 19 -- that's the way it's formulated. Am I answering your 20 question? 21 MARIA PALLANTE: Yeah. And, Mr. Thomas and 22 Mr. Mudd, feel free to jump in. But really we're just 0076 1 trying to understand the patrons. 2 GARY MUDD: I think part of what we need to 3 understand is that we don't fit in a box. There aren't 4 -- well, at -- Allan mentioned earlier, there's no one 5 answer to this question. Students who are -- that we 6 deal with, the K-12 population, they're becoming much 7 more savvy with computers. And like George, you know, 8 he can access pretty much, with technology, whatever he 9 needs to because he's an expert user. There are still 10 kids who need braille, who need to be taught with 11 braille and then move into technology for getting more 12 information. 13 Those of us who are blind or visually 14 impaired typically are happy with any way we can get 15 information, and that could be in braille, it could be 16 with downloading from Bookshare RFB&D. We typically use 17 all kinds of ways to get our information. And none of 18 us can fit in that one box that answers all the 19 questions about -- yeah, we're happy with NLS, we're 20 happy with RFB&D, we're happy with getting braille. We 21 just want access to information. And we do want to 22 protect the intellectual property of the authors and the 0077 1 publishers. We don't want anything for free. And I 2 don't know whether that helps. Again, Maria, is that 3 addressing -- 4 MARIA PALLANTE: Yeah. No -- 5 GARY MUDD: -- the question you had? 6 MARIA PALLANTE: Absolutely. Dr. Kerscher 7 and then Mr. Thomas. 8 GEORGE KERSCHER: The libraries are potential 9 customers for the publishers that have an accessible 10 product. Right now you can't buy accessible books. So, 11 Recording for the Blind and Dyslexic has to manufacture 12 it. And there's, as we've learned, high cost associated 13 with that manufacturing process. There was -- if the -- 14 you -- if the library could buy it, add it to their 15 collection like a regular library buys a book, there 16 would be no reason for them to spend money manufacturing 17 it. 18 So, the copyright exception is there for 19 those titles where we cannot purchase it. And we want 20 to see the -- we hope that the publishers are going to 21 see this emerging market and universally design the 22 product so it's going to work with a whole host of 0078 1 different people with and without disabilities and we'd 2 add those titles to our collection. 3 So, in fact, as our libraries continue to use 4 the copyright exception to make books accessible that 5 would not otherwise be accessible, we also become a 6 market for the publishers as they create accessible 7 content. 8 MARIA PALLANTE: Thank you, very much. 9 BRAD THOMAS: Can I -- 10 MARIA PALLANTE: Oh, I'm sorry, Mr. Thomas -- 11 BRAD THOMAS: That's okay. 12 MARIA PALLANTE: -- and then Mr. Aiken. 13 BRAD THOMAS: Just very quickly, I -- we 14 don't see it as an either-or proposition. And I think 15 this has been articulated already. We certainly believe 16 that a copyright exemption will need to continue to 17 exist. We believe that we have value-add to the 18 process. We believe that we have a technical expertise 19 that, while is developing rapidly within certain 20 segments of the publishing industry is not, as we've 21 heard, yet completely viable. 22 With that said, we certainly recognize the 0079 1 need for mainstream access as you cited originally, and 2 think that we have an important role to play in that and 3 would like to be a part of that evolving process. 4 MARIA PALLANTE: Okay. Paul. 5 PAUL AIKEN: Thank you. Yeah, we don't think 6 any changes need to be made to the law, no new 7 regulatory exceptions are needed. And partly because 8 the proposal we've -- we made earlier, which would make 9 DRM'd books accessible using modern devices to the blind 10 and visually impaired, and respecting our legitimate 11 markets at the same time. 12 To Dr. Kerscher's assertion that we're 13 proposing establishing a national registry, this is just 14 untrue, we're not. There's an existing framework under 15 Chafee, and our proposal is to leverage that. And this 16 is not a network of -- you know, of faceless 17 bureaucrats, these are trusted intermediaries. A lot of 18 nonprofits set around this table are involved. It's 19 decentralized. There already is an existing list. We 20 would -- those people would be entitled to an additional 21 benefit as a result of having their certifications. 22 So, we think it's a elegant, and simple, and 0080 1 inexpensive solution to providing access for hundreds of 2 thousands of books within a very short period of time to 3 the blind and visually impaired. 4 MARIA PALLANTE: Dr. Kerscher, did you want 5 to respond to that? 6 GEORGE KERSCHER: Thank you. Reading my 7 mind. I would benefit by that. But there's -- the 8 majority of people who need to use this technology would 9 not be registering. So, you'd be forcing them into a 10 situation to use a mainstream technology that it was 11 designed -- the eBook specification was designed to be 12 used with text-to-speech and is being turned off, is -- 13 amounts, to me, turning off a fundamental human right to 14 access information. 15 So, I see that we've got a rights conflict 16 here between the recording rights that have been sold 17 and the fundamental human right to access the 18 information that I've paid for. 19 MARIA PALLANTE: Paul, maybe you could speak 20 a little more about contracts perspectively, because 21 obviously you're dealing with existing contracts and 22 emerging business models, and they're all coming 0081 1 together. But is there any thought about how this might 2 change over time contractually? 3 PAUL AIKEN: Sure. And I do want to point 4 out, again, that the existing contracts still do have 5 the exception in them so that authors do donate rights, 6 as they have for decades, to allow braille and audio 7 versions be created without royalties being paid to 8 authors. 9 You know, but potentially those could be -- 10 those exceptions could be expanded contractually, but 11 that will take discussion from a lot of people figuring 12 out exactly how to do that in a way that does not 13 disrupt the market. 14 We have to bear in mind that we're at the 15 dawn of this market. This is -- we're just beginning. 16 And the worst thing we could do is to come in with a new 17 regulatory framework that could impede the market and 18 prevent market-based solutions from answering many of 19 these problems. And we think the answer is instead to 20 look to contracts, to talk to the people who are around 21 this table and workout something that works for everyone 22 that can be implemented contractually. 0082 1 MICHELLE WOODS: Just a quick follow up with 2 Mr. Aiken. And that was you had mentioned Amazon. Did 3 you say Amazon is developing an accessible version of 4 the Kindle 2, or that they would need to? I just wanted 5 to clarify the situation with that technology. 6 PAUL AIKEN: Right. So, there's two parts to 7 the accessibility. One is the physical accessibility of 8 the device itself. And what we've heard -- I haven't 9 had it verified -- but what we've heard is that they are 10 developing an accessible version of the device itself, 11 presumably with a braille keyboard and audible menu 12 commands. 13 The other side is the software side and, of 14 course, that part has been solved. There's a version of 15 Kindles operating system that permits text-to-speech. 16 And apparently there's another version in -- that's in 17 beta testing right now that would allow selective 18 turning off of text-to-speech where it's contractually 19 required. 20 MARIA PALLANTE: Okay. I've got Miss 21 Rangnath, followed by Dr. Kerscher. And we're getting 22 towards 11:30, so, if anybody else wants to speak on 0083 1 this panel -- Allan, Mr. LaBarre -- raise your hand now 2 or you're out of luck. Okay. 3 RASHMI RANGNATH: I just wanted to point out 4 that, when we talk about rights and audio rights, we 5 should be mindful of the fact that these rights may not 6 be copyright rights and they may not be -- they may 7 not -- publishers and authors might not have these 8 rights. 9 The Copyright Office has observed in 2003 10 that the audio rights and eBooks were private 11 performance right, which is not covered by -- which is 12 not the right given to the copyright owner. So, we have 13 to be mindful of that limitation when we're talking 14 about marketplace and what rights implicated, and what 15 damage is being caused to the publisher. 16 GEORGE KERSCHER: The Kindle 2 is accessible 17 to some people with disabilities right now. And we've 18 seen that some students with disabilities at higher ed 19 have found a few of their books in the Amazon 20 collection. But people who are blind, the -- all the 21 controls are visual. So, a portion of the disabled 22 population can use the Kindle. And, in talks with 0084 1 Amazon, their intent was, and they've blogged about, 2 making the rest of it accessible. 3 And now with the Kindle DX, the bigger one 4 that they've announced targeted toward education, boy, I 5 would think, if they don't make those controls 6 accessible they're going to run into a lot of 7 controversy. 8 MARIA PALLANTE: Thank you. Mr. LaBarre, you 9 have the last word for this panel. 10 SCOTT LEBARRE: I just wanted to -- 11 MARIA PALLANTE: Oh, I'm sorry, you have the 12 next to the last word for this panel. 13 SCOTT LEBARRE: Fine. 14 MARIA PALLANTE: Followed by Allan Adler. 15 SCOTT LEBARRE: I have the penultimate word, 16 I guess. 17 The -- it appears -- obviously when Chafee 18 was adopted, we didn't have the current reality of the 19 emerging technology, and e-text to the degree we have 20 now. But, as we wrote in our comment submitted by 21 Dr. Mauer, we believe that correctly interpreted Chafee 22 Amendments do apply to e-text. However, we also agree 0085 1 that that needs to be clarified and, perhaps, with some 2 sort of regulatory guidance. 3 We also believe that the issue of -- 4 regarding what kinds of organizations can produce these 5 books is, perhaps, another issue that needs to be 6 clarified. The whole idea of having a primary mission, 7 clearly somebody like RFB&D has a -- it is their 8 mission. But it could be argued that, when a disabled 9 student services office on a college campus is 10 attempting to convert a book into electronic format for 11 a student, that would constitute a primary mission of 12 that particular entity. So, maybe there needs to be 13 some clarification in that regard. 14 MARIA PALLANTE: Okay. Thank you. 15 And, Allan. 16 ALLAN ADLER: Well, I just wanted to follow 17 up on a comment that Scott made before where he was 18 talking about the cost issue should not be paramount in 19 determining how people who have print disabilities are 20 able to have their needs for information served. And I 21 agree with that, but I think cost comes into it in the 22 sense that on the one hand we hear Ed O'Reilly saying 0086 1 that he thinks the population he serves is probably -- 2 is largely one that might not be able to afford 3 universal designed products that are -- have built-in 4 accessibility in the marketplace. 5 On the other hand, I assume that the 6 controversy over Kindle 2 indicates that there is, in 7 fact, a market out there. And there are ready and 8 waiting consumers who have print disabilities who wanted 9 to be able to purchase the Kindle 2 and make full use of 10 all of its capabilities. 11 So, the question that comes back to us -- and 12 I just didn't want to leave the subject of the Chafee 13 Amendment without this -- is ultimately whether or not 14 we can move forward fully into a market-based universal 15 designed product environment while you still have a 16 lingering regulatory approach, in the form of an 17 exemption to the Copyright Act, that explicitly 18 authorizes certain people to be able to reproduce and 19 distribute copies of the work without permission or 20 paying compensation, as long as those copies meet the 21 definition of specialized format. And at that point is 22 an eBook a specialized format? Because it certainly 0087 1 provides the needs of accessibility. Is a digital 2 talking book under the DAISY Standard a specialized 3 format which now can be reproduced? 4 Obviously, if that's the case, then one can 5 readily see the problem from the publisher's perspective 6 in making the investment in producing those versions as 7 a product for the marketplace, when there still is a 8 regulatory exemption that allows people to freely 9 reproduce and distribute them in competition. 10 MARIA PALLANTE: But, Allan, to the extent 11 that the publishers are not distributing all books that 12 are available in that format, is the regulatory scheme 13 not important? 14 ALLAN ADLER: Well, I mean, you know, it may 15 well be -- you may always need it as some sort of a 16 safety net, even when -- if you had a full-blown 17 marketplace working with accessible universal design 18 products. But we're talking here about why it is that 19 publishers haven't been able to achieve that kind of 20 marketplace. And I'm simply submitting to you that part 21 of the problem is the continuing existence of this 22 regulatory approach that says, there's an exemption to 0088 1 copyright that will let people reproduce and distribute 2 copies of those very works, those universally designed 3 accessible works. 4 MARIA PALLANTE: Thank you. We are out of 5 time on this panel. We are going to take a ten-minute 6 break. So, if everybody could be back at 11:40 we would 7 appreciate it. Thank you. 8 (Pause in proceedings.) 9 MARIA PALLANTE: If we can take our seats. 10 Government folks, if you could come back. You're 11 wonderers. 12 Okay. We have two new panelists. Let me 13 introduce them. We have Carrie Russell from the 14 American Library Association, Association of College and 15 Research Libraries, and Association of Research 16 Libraries. And we have Fritz Attaway from the Motion 17 Picture Association of America. And we have lost Rashmi 18 Rangnath from Public Knowledge and -- anybody else? 19 That's it. Okay. Great. So, we lost one and gained 20 two. 21 And this is the second panel. And we're very 22 interested in market initiatives, exciting things that 0089 1 are happening in the nonprofit and the commercial 2 worlds. And we have two demonstrations. 3 I guess I'd like to ask, if you could raise 4 your hand if you would like to make an opening statement 5 in connection with this panel, especially asking the 6 folks who have already made an opening statement this 7 morning. Could you raise your hand if you'd like to do 8 that? Certainly Carrie, George -- okay. Carrie, 9 George, Gary -- yeah, it's obviously -- Brad. 10 Okay. Let's do this, let's start with 11 Carrie, George, and Gary, and then we'll have -- we will 12 then have Fritz do his demonstration, followed by 13 Pearson Publishing. 14 So, Carrie, five minutes. 15 CARRIE RUSSELL: I'll be brief, because I 16 know we have the demos and everything. I just want to 17 -- the Library Associations want to thank the Copyright 18 Office and the Patent Office for conducting this study. 19 We think it's very important and a good sign that our 20 agencies want to be prepared when they go in to talk 21 about any expansions of these laws at the national or 22 international level. We really appreciate it. 0090 1 The way we approached this, because there was 2 not that much time to kind of find out what the realm of 3 possibilities were out there, was that we just did a 4 really quick and dirty and interview kind of process 5 with as many people as we could, librarians who work for 6 specialized agencies, librarians who work in public 7 libraries, academic libraries, and then also with 8 reading and -- reading impaired people, people that 9 cannot -- do not have accessible formats. 10 And, so, I -- going through this process -- 11 because there was not enough time -- it really pointed 12 out to me that we need to really talk more with the 13 users of these products and these formats, because there 14 is so much that we do not know. If we're going to build 15 a market for new formats, I think you -- it's just 16 amazing the changing demographic of people out there 17 that might be using these products. And, if we had the 18 time, I would just love it if we had a time to do a 19 study of all the people out there that are affected by 20 this. That was my big learning. 21 The librarians overall that I talked to are 22 grateful -- very grateful that they can turn to the 0091 1 Chafee Amendment, the IDEA Act and fair use when meeting 2 the needs of the visually impaired. 3 They expressed a great concern that, please 4 don't take the Chafee Amendment away from us, when told 5 that the library -- that the Copyright Office was going 6 to study this issue. They just thought they had come so 7 far with the Chafee Amendment, even though it was a 8 problem, just please don't take it away. 9 I have a few comments that were in my 10 recommendations. First of all, the eligibility 11 requirements and allowed formats in the Chafee 12 Amendment, the IDEA Act, and the No Child Left Behind 13 Act should be harmonized. There's a lot of confusion. 14 How far the Copyright Office or the Patent Office can go 15 to fixing that problem, I don't know. But there's a 16 great deal of confusion about what's allowed and what's 17 not allowed. And these laws are in conflict. 18 Eligibility requirements necessary to obtain 19 accessible formats need to be relaxed to recognize the 20 growing demographic of people losing their sight in 21 later years. There's a huge, huge population of older 22 people that are losing sight. Even large print formats, 0092 1 which are sometimes allowed and sometimes not allowed, 2 would go a long way in helping these people. 3 Contract law we believe should not be 4 permitted to expand the exclusive rights of copyright 5 holders in a matter that denies information access to 6 the visually impaired. We think that the whole Kindle 7 activity is -- highlights kind of an extreme approach to 8 deny the visually impaired, same time, same access, same 9 book, same price. Certainly these are individuals that 10 want to buy -- that are buying the book so that they 11 should certainly be able to use it. 12 And we'd like to also recommend that, in your 13 report from these proceedings, that the Copyright Office 14 reiterate the fact that fair use -- the rights of fair 15 use are not effected by the Chafee Amendment. That 16 people -- specialized libraries aren't the only ones 17 that can make specialized formats. Depending on the 18 situation at hand and the forefactors, librarians at any 19 institution be -- should be able to make an accessible 20 format at the request of the user. And that's all I'll 21 say for right now. 22 MARIA PALLANTE: Thank you, Carrie. 0093 1 George. 2 GEORGE KERSCHER: Okay. So, I think we've 3 already -- getting to the point where the copyright 4 exceptions and trusted intermediaries working together 5 can be two concepts living harmoniously. The W3C is the 6 standard-setting body for the Internet. And what -- the 7 approach that they've taken is with three sets of 8 guidelines for accessibility. One is regarding the 9 content -- the web content accessibility guidelines on 10 what constitutes the actual information. 11 The authoring tool guidelines, which is for 12 manufacturers' tech companies that help people make 13 their products accessible right out of the box. So, 14 Adobe InDesign is widely used in the publishing 15 industry. It's not the only thing that's used. But 16 working with Adobe -- Adobe has just joined the DAISY 17 Consortium. And we're very pleased to see that and want 18 to work with them. They do have a Save as DAISY XML in 19 their latest release. It's pretty primitive. We need 20 to work with them that -- but that should help us. So, 21 all of the authoring tools need to be producing 22 accessible content and -- to make it easy on the 0094 1 publishers. 2 And then, finally, the user agent 3 accessibility guidelines, so that the reading systems 4 that are out there, like the Kindle wouldn't -- the next 5 time the Kindle comes out wouldn't come out with 6 controls that weren't accessible. Digital Editions from 7 Adobe is not accessible. And that's a software 8 application that should be accessible. All of these 9 reading systems should be -- the guidelines on how to 10 create user agents should be there. So, those are some 11 techniques that other industries have done and I think 12 can be applied in the publishing field. 13 MARIA PALLANTE: Thank you. 14 Brad. We'll go in order here. 15 BRAD THOMAS: Okay. Sure. I'll make this 16 very quick. I just wanted to highlight, I think all -- 17 most, if not all of you, are familiar with RFB&D and 18 what we do. I think, actually, Lauren -- the individual 19 who did not give a last name apparently but submitted 20 comments to this request -- put it best. She said, 21 "Being able to listen to audiobooks, RFB&D recordings, 22 et cetera, was a lifesaver when I was a student from 7th 0095 1 grade to a senior in college. The ability to listen to 2 textbooks, novels for classes helped tremendously in my 3 success at school." 4 We have a long history of meeting the needs 5 of the print-disabled community, and are very much 6 dedicated to continuing that. 7 We are focused on educational content. Our 8 online library has 50,000 digitally recorded books, 65 9 percent of which are core textbooks for the education 10 community, which is the bulk of the work that we do. 11 The bulk of our materials are human recorded digital 12 audio files in DAISY format, providing key navigation 13 tools by unit, chapter, and page levels. 14 We deliver those files through multiple 15 platforms, CD, and increasingly downloadable through our 16 web-based platforms. We have traditionally not done as 17 much work with electronic text, but that is changing as 18 technology and the marketplace is evolving. And we're 19 very excited about moving more forcefully into that 20 market. 21 And also collaboration has long been an 22 important part of our work with APH and NLS in our 0096 1 collaboration in -- between certification efforts and 2 our libraries. And I think I'll leave it at that and 3 I'll just move on. 4 MARIA PALLANTE: And, Gary. 5 GARY MUDD: I -- excuse me -- I won't 6 reiterate all of what I said earlier, but we -- some of 7 the collaborative efforts that Brad mentioned earlier 8 that we are engaged in, the Louis database of accessible 9 materials. We have -- which is a federally-supported 10 national database of more than 196,000 books in 11 accessible format. Now that means braille, audio, large 12 print for use by blind and print disabled. Louis is a 13 -- it's a type of union list, as it provides catalog 14 information of materials for -- with over 170 agencies. 15 Louis has -- it's a two-fold purpose. One is 16 to make the books easier for those who need them to find 17 them; and the other is to reduce and try to eliminate 18 duplication of effort. If a student in California needs 19 a book and a transcriber is to -- is beginning to 20 transcribe that book, they usually will put an intention 21 on so that some other transcriber in another state won't 22 start the book. So, we try to help with that. 0097 1 NIMAC, APH has developed and managed the 2 National Instruction Materials Access Center, NIMAC, 3 with the -- which Congress designated in, what, IDEA 4 2004. NIMAC houses more than 16,000 electronic files of 5 textbooks and related print core materials in a 6 specialized file format. These files are used to 7 produce accessible formats for students at the 8 elementary and secondary school levels. 9 We also have a database of tactile graphics 10 so that commonly used tactile graphics in textbooks can 11 be downloaded by transcribers from wherever to use that 12 basic tactile graphics to build on for the books they 13 are transcribing. And we have images -- commonly-used 14 images that are available to those transcribers, so that 15 the resources can benefit the most people and the 16 students the best way we possibly can. So, that's kind 17 of -- 18 MARIA PALLANTE: Thank you, very much. 19 Fritz, you should feel to give an opening 20 statement and then move into your demonstration. 21 FRITZ ATTAWAY: Actually I'd like to do it in 22 reverse order. 0098 1 MARIA PALLANTE: Oh, okay. 2 FRITZ ATTAWAY: Most of what I've heard so 3 far today has related to the print media, and I'm going 4 to change the focus a little bit for a few minutes and 5 talk about movies and other audiovisual works, which are 6 made available to the blind by way of audio 7 description. And I'd just like to show you a short clip 8 of the "Bee Movie", which has been audio described by 9 Paramount Pictures, just so everyone knows what I'm 10 talking about. So, roll it, please. 11 (Movie played.) 12 FRITZ ATTAWAY: I think you get the idea. I 13 wanted to show this because I think it illustrates a 14 number of points. 15 First of all, obviously, video description -- 16 or audio description is a way of providing access to 17 movies and other audiovisual works to the blind. It is 18 something that can be done and is being done. I'm 19 advised that most major releases are audio described for 20 the blind. 21 Secondly, I think it illustrates that audio 22 description is complex, it's time consuming, and it 0099 1 requires considerable skill to do; and it is, therefore, 2 expensive. So, there's a cost factor involved. 3 Thirdly, it's a process that requires 4 considerable creative judgment. It's clearly speech 5 that's protected by the First Amendment, and it cannot 6 be compelled by government. And for that proposition I 7 would cite Pacific Gas and Electric Company versus 8 California Public Utilities. Under our First Amendment 9 speech cannot be compelled, so, that's a consideration. 10 Finally I think this clip illustrates that 11 there are many creative, technological, financial, and 12 other challenges involved in providing access to 13 audiovisual works to the blind. Copyright is not among 14 these challenges, or if it is, it's relatively 15 insignificant. 16 And I will save further remarks on proposals 17 for copyright exceptions and limitations for the next 18 panel. But I'll just stop there today. 19 MARIA PALLANTE: Okay. Thank you. And I'm 20 sure we'll have some questions for you about what we 21 just saw, but let's go to the second demonstration. 22 And, Peter, again, if you'd like to do a five-minute 0100 1 statement as well, you're welcome to do that. 2 PETER CHAPMAN: I'm still Peter Chapman. I 3 still work for Pearson. I'd like to, in a minute, take 4 an opportunity to very briefly demonstrate to the 5 Copyright Office and other attendees of the panel a new 6 technology which Pearson has developed, which we call 7 HTML book. It is an HTML based eBook viewer which is 8 designed to allow assistive technology to easily read 9 the book to a student who cannot utilize either 10 Pearson's other eBook viewers or those from our 11 competitors. 12 A couple of points, it's worth reminding the 13 attendees today, which is probably obvious, and that is 14 through many years of providing digital solutions, the 15 industry has learned a lot about presenting content from 16 our customers who do not have disabilities. For 17 example, despite its original design for the hearing 18 impaired, captions on television are yet -- are used by 19 a far greater audience than the visually impaired, which 20 ranges from English language learners to people in noisy 21 environments. I can speak from personal knowledge of 22 this, my wife, having been born outside the country, 0101 1 learned her English watching soap operas and reading 2 them, of course, with the closed captioning. 3 My point is this, many consumers wouldn't 4 have benefited if the government industry had mandated a 5 unique and separate system to deliver TV specifically 6 for the hearing impaired. Pearson believes that 7 solutions that work well for those with disabilities 8 are, in many cases not all clearly, also going to 9 benefit those that don't. This morning's conversation 10 about the Kindle I think was a very good example of 11 that. 12 Students with disabilities, however, provided 13 the impetus for creating the new HTML book technology 14 I'll show you in just a second. However, we at Pearson 15 really aren't clever enough to know absolutely all the 16 ways students are going to use the Pearson HTML book. 17 And we will learn along with the industry. 18 This HTML is a complete digital version of 19 the textbook. Our development -- internal development 20 team worked very hard to make this product compatible 21 with third-party assistive technology. It contains all 22 the textbook content and nothing else that hinders 0102 1 working with other vendors who want to utilize it. 2 Unfortunately I don't have any assistive 3 technology with it, so, for those who are visually 4 impaired today, you won't be able to hear it. Pearson 5 itself doesn't make those technologies, but we have 6 built this to work with those technologies. 7 So, I'd like you to flip the switch. There 8 we go. Obligatory picture of my kids. Okay. So, what 9 I've done is just launched a standard browser. This 10 happens to be Firefox. I happen to be running on a 11 Macintosh. And this is the MaGruder American Government 12 Textbook. It's a brand new version of the textbook. It 13 -- I think it's just being launched now, if I recall 14 correctly. It's an eighth-grade textbook. And it is 15 the HTML book version of it. 16 So, there's a number of things that we've 17 done to try to make this as useful as possible to the 18 audience we intended. First, as you look at the very 19 top, you'll see that it has a Pearson logo, but it does 20 not have a fancy logo of the book. And being a 21 publisher we tend to put those in all the time. In this 22 case we felt it really didn't add anything to it, so, we 0103 1 made it just a generic logo not to interfere with 2 anything. 3 And you notice at the top here there's a 4 button -- and, by the way, these are all tab 5 accessible -- it says skip directly to the table of 6 contents. So, by clicking that you can -- it inserts 7 the cursor to the table of contents. So, again these 8 third-party readers will be able to take great advantage 9 of that. There's a second button here that says skip 10 directly to the main content. And that positions the 11 cursor to the beginning of the content. In this case 12 the cover page is showing, so, it will make more sense 13 when I show other pages. 14 If you go a little further down, you notice 15 the book is created very vertically. And, just as a 16 smaller side for those of you who understand K-12, 17 especially K-6 textbooks, that's not normally the case. 18 I think that was brought up by an earlier speaker, in 19 that textbooks, for better or for worse, are becoming 20 much more visually oriented. And they tend to have lots 21 of breakup boxes, or textbooks that often displays 22 across two pages. 0104 1 So -- and this is a point I may want to come 2 back to later in the remarks when we talk about the 3 Kindle -- some of those devices are not especially well 4 suited to take the standard eBook -- or the standard 5 textbook and display it electronically. This HTML book 6 has actually done a bit of reflow work and reformatting 7 to make it work as well as possible. 8 So, the next line here has a change text size 9 option. And, of course, by clicking on the plus it 10 makes the font larger, by clicking on the minus it makes 11 the font smaller. And we can show and hide the table of 12 contents. A lot of the -- the Kindle, if I remember 13 correctly, does not have a table of contents. So, in a 14 textbook environment -- you know, in a novel that 15 probably doesn't make the least amount of importance, 16 being a textbook it's crucial. 17 You notice also at the top here I can enter a 18 page number. So, I can jump directly to Page 20 by 19 typing in 20 and pressing go. And I've jumped now in 20 the display to Page 20. Again -- and not to knock the 21 Kindle, because Pearson supports the Kindle, but just to 22 point out differences -- I don't believe that the Kindle 0105 1 has a go-to page, okay, go-to capability. So, if you 2 think of a typical classroom environment where the 3 teacher says, okay, let's all turn our books to Page 17, 4 that's something very viable in this model. It may not 5 be viable in other products. And you also have the 6 ability to linearly jump through pages by clicking the 7 right or left arrows. 8 So, now I happen to be on Page -- I think 9 it's 22 -- and you'll see that the text is there. And 10 it also creates a cookie crumb trail. So, if you're 11 referring to the table of contents, I mean, you hit one, 12 Chapter 1, Section 3, and I can back up by clicking on 13 the table of -- on the cookie crumb and scrolling up and 14 down. 15 And I'll just flip through a few more pages. 16 And, of course, that change text size still works here, 17 too, so, if you need a larger sized text it works very 18 nicely. 19 Going over to the table of contents for a 20 second, it has the standard expand, collapse metaphor 21 that everyone is familiar with. So, I've expanded Unit 22 1 and then I can expand skills handbook and click right 0106 1 on writing. And now I've jumped into a particular 2 portion of the text. 3 The images are embedded in a linear fashion. 4 So, unfortunately I can't compare -- contrast this with 5 a printed book. I should have brought it to show. But 6 it has the same text, it has the same photographs. But 7 the page layout that is on the printed page will be 8 altered to work appropriately within this technology. 9 So, this is technology that we have pretty 10 much finished. Tom Starbranch, who sits behind me, is 11 actually one of the key managers for it. And we're 12 going to be making this selectively available for some 13 of our -- starting with high school titles -- in 2009 14 and kind of work our way into the market. I guess that 15 reinforces the point I made earlier today -- 16 (Bell rings.) 17 PETER CHAPMAN: -- about edging our way into 18 the market to understand what the market needs are. 19 MARIA PALLANTE: Thank you, very much. I 20 have a question for Fritz, and then my panel I'm sure 21 has some follow-up questions as well. 22 Fritz, what were the -- what were the 0107 1 incentives for the motion picture companies to, as I 2 understand it, create these audio versions -- 3 alternative audio versions of the movies voluntarily? 4 FRITZ ATTAWAY: The incentive is that it's 5 the right thing to do. It's certainly not something 6 that is a significant -- or any revenue source that I'm 7 aware of. My understanding is that the studios over the 8 years have worked with a number of groups that represent 9 the blind. I think WGBH has been involved in audio 10 description. And they do it because it's the right 11 thing to do. 12 MARIA PALLANTE: And are they -- they're 13 available in theaters? 14 FRITZ ATTAWAY: Yes. 15 MARIA PALLANTE: And is that it, or are they 16 distributed as DVDs? 17 FRITZ ATTAWAY: Some are distributed in DVD, 18 but I'm told that not many movies are available -- are 19 video described on DVDs for a number of reasons, one of 20 which is simply lack of demand. Also at one time shelf 21 space was a factor. I think that's becoming much less 22 so as compression techniques allow more and more 0108 1 material to be put on a DVD. I think that's something 2 that requires more work. Personally I would like to see 3 more movies available in -- with video description on 4 DVDs. 5 MARIA PALLANTE: Thank you. You're looking 6 very thoughtful, Mr. Shapiro. 7 MICHAEL SHAPIRO: Nothing in particular on 8 this. 9 MARIA PALLANTE: Michelle. 10 MICHELLE WOODS: Thanks. Well, I thought 11 maybe a good first question for this panel, since this 12 is the panel on initiatives, would be just to kind of 13 open up the floor to ask what initiatives there are out 14 there, either that you're aware of, or that your 15 organizations are a part of, in terms of providing more 16 accessible materials to the blind and other persons with 17 disabilities. And here I think we are talking both 18 about commercial marketplace initiatives and also 19 nonprofit or library-based initiatives. 20 So, is there anyone who would like to tell us 21 a little bit about some initiatives? 22 MARIA PALLANTE: Carrie. 0109 1 CARRIE RUSSELL: For the most part there 2 aren't any initiatives at the higher-education level 3 with academic libraries. There aren't any special 4 initiatives in the public libraries. The K-12 school 5 libraries work very closely with the existing agencies. 6 And they managed to get many of their needs met. 7 I think that, if you are at college campus, 8 you'll see that -- just the way things are divided up, 9 there's adaptive technologies like divisions that serve 10 people that have handicaps, and only tangentially will 11 work with the library. Sometimes the library may have a 12 adaptive equipment, but a lot of times they don't. 13 Public libraries, I think they generally 14 believe that they do not have a role in serving the 15 visually impaired, unless they have a specific, like, 16 division. Like, there are some really exemplary 17 programs, DC Public, Cleveland Public Library, they have 18 a very -- you know, very well thought-out plan. They 19 serve many, many people. But many of the libraries that 20 I talked to that are public libraries think that they're 21 -- lawfully they -- they're not allowed to make certain 22 formats for the blind. They don't think that they're 0110 1 allowed to, and that they have to turn that request over 2 to an authorized agency. 3 So, I would say that there's not too much 4 going on in the schools and -- I mean, in the public 5 libraries and the academic libraries. 6 MARIA PALLANTE: Allan, I'd like to ask you, 7 what are the right economic incentives for publishers 8 these days to move to a more market-based approach? 9 What is it that publishers need? 10 ALLAN ADLER: It's a very difficult question 11 to answer, in part because, as I said before, membership 12 of AAP is a good example of the sectorial nature of 13 publishing. And what might work for trade publishers, 14 for example -- whose works were chiefly at issue in the 15 dispute over the Kindle 2 -- is not necessarily the same 16 thing that's going to work for educational publishers or 17 professional and scholarly publishers. 18 I think part of the problem here is that 19 there is, unfortunately, no mandate in the marketplace 20 for the kind of shift in media that we saw, for example, 21 with respect to motion pictures, or to music, where 22 there was a situation where the DVD came along and 0111 1 completely supplanted VHS tapes, for example. Because 2 not only did they provide a sharper, clearer picture, 3 but they had enhanced storage capability, which allowed 4 more material to be put on the product that would be 5 distributed in the marketplace. 6 Similarly with music, we watched as a 7 succession of media not just came along to supplement, 8 but to supplant what came before it. And you don't see 9 people much today using 8-track tapes or cassette 10 tapes. And very shortly, according to my friends in the 11 music industry, the CD is probably going to go the way 12 of its predecessors, as people get their music almost 13 exclusively through a downloading model. 14 So, for publishers who for 400 years have 15 essentially had a format for the literary work that 16 actually was quite successful. It's durable, it's 17 portable, relatively cheap. They are having to gamble 18 on the extent of their investment in digital formats and 19 whether or not that's going to meet the tastes, as well 20 as the needs of consumers in the marketplace for reading 21 materials. 22 As I've said, I think in the last eight years 0112 1 or so, some of the earlier hyperbole about what people 2 thought was going to take off with respect to eBooks 3 simply didn't come about. And there are a lot of 4 reasons for that. As I said, the eBook isn't a product 5 that is put together simply by a publisher and put out 6 into the marketplace. It's a product that is a 7 combination of hardware, and software producers, as well 8 as the publisher and ultimately the author's work. And, 9 unfortunately, as long as there's still proprietary 10 dispute and combat in the marketplace for dominance as 11 to which formats are going to continue to predominate, 12 whether we're going to be dealing with a particular type 13 of dedicated reading device, or whether the preference 14 is going to be for people to read eBooks on PDAs, or 15 their iPhones, or on PCS. Frankly from the publisher's 16 perspective, eBooks remains a pretty uncertain 17 proposition in the marketplace. And the kind of 18 investment that we've been talking about to transition 19 one's production facilities away from what was primarily 20 designed to produce print on paper book, now to produce 21 something in digital form and what does -- what that 22 transition should be, how you set up a production system 0113 1 that's designed to produce works in digital format still 2 remains a matter of uncertainty to many publishers in 3 different sectors, because they simply don't know if the 4 marketplace is ready to accept those versions. 5 So, it's really -- I mean, I'm not trying to 6 be evasive, I can't tell you that there is a list of 7 three, or four, or five particular things that I think 8 would create incentives for publishers. 9 I know that, again, the existence of a 10 regulatory framework based on a copyright exemption does 11 give them pause about how much they can commit to the 12 idea of universal design products in digital formats, as 13 long as there exists legal authority for people to 14 widely reproduce and distribute those copies without 15 permission or payment. 16 MARIA PALLANTE: I'd like to get to 17 Michelle's question. Thank you, Allan, and -- okay. 18 Dr. Kerscher, if you could wait for just one minute, 19 you'd like to respond to Allan, I gather? I'd like -- 20 GEORGE KERSCHER: Two points, but, yeah. 21 MARIA PALLANTE: Okay. If we can come right 22 back to you. 0114 1 I'd like to ask Mr. O'Reilly to tell us what 2 initiatives are underway at the National Library 3 Service? How are you embracing new technology? How 4 have you arrived at that point to make the decisions 5 that you've made? And how are you serving your patrons 6 in new ways? 7 ED O'REILLY: Right. As I mentioned in the 8 earlier panel, we've just shipped 5,000 proprietary 9 digital talking book machines to eight test libraries, 10 along with a little starter kit of, I think, 52 digital 11 books that will be circulated among a small number of 12 patrons for -- who are known by the libraries to be 13 active readers, and interested in their libraries and 14 their reading, committed to it. And we'll be collecting 15 feedback on that prior to the go ahead on true mass 16 production of these machines. And Plextor Limited in 17 Japan is our contractor. 18 In addition, in tandem we've been building a 19 -- we call it BARD, the braille and audio reading 20 download. We have a -- I think about 15 -- sorry, the 21 numbers have escaped me. There are several thousand 22 books -- digital books online available to patrons who 0115 1 are heretofore been using the human stream to download 2 these. And I think there are a couple of other 3 commercial machines that Icon that maybe one of you -- 4 what's the other one? 5 GARY MUDD: Braille Plus. 6 ED O'REILLY: Braille Plus. Sorry. Yeah, of 7 course. That can need NLS books. 8 In the very near future we expect to 9 integrate web braille, which is a web-based contracted 10 braille book system with the audiobooks to have a 11 unitary system. Patrons will be able to download 12 braille books, or audiobooks, or both, and use them with 13 the appropriate equipment. 14 Yeah, that's -- 15 MARIA PALLANTE: Okay. 16 ED O'REILLY: -- taken up a lot of our 17 energy. 18 MARIA PALLANTE: Thank you, very much. 19 ED O'REILLY: Okay I -- may I say one other 20 thing? 21 MARIA PALLANTE: Yeah. 22 ED O'REILLY: People have no -- no one has -- 0116 1 I'm concerned about this text-to-speech proposition, 2 because I know a lot of our patrons have been unhappy 3 with synthetic speech and want human voice renditions of 4 books. 5 And our -- as I said, our -- that might be 6 perfectly fine with a -- oh, an auto repair manual, or a 7 law book, say. But for a -- or recreational reading, 8 Michael Connelly and Danielle Steel and so on, synthetic 9 speech is not altogether happy. 10 And I also wanted to say, I think this is the 11 post-modern era, and we're supposed to be engaged in 12 fluidity and fragmentation. And I think that's probably 13 what we're ultimately looking at. I wouldn't object to 14 the withering away of the National Library Service, 15 provided the people who use it who may be indigent, or 16 immobile, or remote, or reclusive, or computerless, are 17 served in some fashion in the model -- the traditional 18 model of a free library service. Thanks. 19 MARIA PALLANTE: Thank you. I have 20 Dr. Kerscher, followed by Mr. LaBarre, followed by 21 Mr. Thomas. 22 GEORGE KERSCHER: I tested the Pearson 0117 1 product in development. Good work. Terrific. I 2 believe that was generated from the NIMAC files, the 3 DAISY XML files. I think that's right. A lot of work 4 went into the features and functions and how it worked, 5 but the actual transformation was from an XML file set; 6 am I right? 7 PETER CHAPMAN: Yes. 8 GEORGE KERSCHER: So, future products are -- 9 will not require the amount of research and development 10 to make the next book. You've learned a lot, and the 11 process will become more automated. I don't know how 12 much hand work goes into it, but hopefully that can be 13 -- a lot of that can be automated. Are you optimistic 14 there? 15 MARIA PALLANTE: Yeah, please. 16 PETER CHAPMAN: I recall your conversation 17 from this morning about the need to automate processes, 18 and I couldn't agree with you more. The way to drive 19 down costs is to automate the processes and reduce this, 20 quote, hand work. And that's what we need to do, is as 21 we retool ourselves -- I think as you pointed out -- 22 from a print environment to a digital and print 0118 1 environment, the need to have very efficient processes 2 whereby for the most it generates a file format 3 compatible with this HTML book, it is the issue to us. 4 Because it right now is an added cost to us, and it is 5 an uncertain market in terms of recovering that cost. 6 So, if we were to bear a multidollar per page 7 cost with uncertain revenue opportunities, that just is 8 not a viable business model for us. 9 GEORGE KERSCHER: So, the -- in the same way 10 of thinking about the XML transformations that need to 11 take place, I'm told by publishers that are part of the 12 International Digital Publishing Forum, that they are 13 exclusively shipping epub to their distributors. So the 14 variety of proprietary systems are all getting the same 15 content feed from the publishers in the epub format. 16 So, yeah, there's variety there and it's -- 17 you buy one epub reader and you can use certain kinds of 18 content. But the feed from the publishers is the same 19 XML source content. So, that's very optimistic. 20 But I did want to respond to Allan's concern 21 that, if there's a copyright exception, that this 22 accessible HTML version that Pearson will sell would be 0119 1 taken by an authorized entity and distributed freely, I 2 don't think it's ever happened, to my knowledge. And I 3 don't know why that -- an organization, a trusted 4 intermediary, would do that. I'm -- I just -- I don't 5 understand that argument. It may be a fear but, you 6 know, I don't see that as a -- something that should 7 keep people awake at night. 8 ALLAN ADLER: Can I answer his question? 9 MARIA PALLANTE: Please. Go ahead. 10 ALLAN ADLER: I mean, George, one of the 11 reasons why it's a matter of concern, frankly, is 12 because I think people are beginning to find out the 13 sophistication of what a digital talking book actually 14 embodies at this point. And we had the problem, for 15 example, with implementation of the NIMAC Standard, and 16 the NIMAC Repository Center under the IDEA Amendments of 17 2004, where certain groups wanted to qualify as 18 authorized entities to be able to have access to those 19 files. 20 One thing that was problematic for us was we 21 said, sure, I mean, to the extent we know the major 22 authorized entities, which would be the folks sitting 0120 1 around this table plus Bookshare, that that would be 2 something that possibly could work, if somebody was 3 willing to take responsibility for any others who wanted 4 to step forward and qualify as third-party authorized 5 entities. And we quickly learned that that was beyond 6 the capability of the American Printing House as the 7 host of the NIMAC Center. We learned from the 8 Department of Education's Office of Special Education 9 that they didn't want the responsibility of determining 10 who is or who is not legitimately an authorized entity. 11 Nor did anyone want the responsibility of ultimately, 12 once these groups were designated as qualifying to use 13 those files, to monitor their activities, to make sure 14 that ultimately they followed the rules and regulations 15 in the guidelines. 16 So, we're hearing that no one wants to take 17 responsibility for a concept that is easily expandable, 18 and for which there will be incentives for it to expand, 19 to introduce additional third parties who will say, we 20 would like to serve as an authorized entity under the 21 Chafee Amendment. 22 GEORGE KERSCHER: So, may I? 0121 1 MARIA PALLANTE: Yeah, please. 2 GEORGE KERSCHER: So -- okay. I'm with ya. 3 So, the idea of a trusted intermediary, that concept is 4 in need of care and feeding for the development so that 5 publishers will be happy with organizations that are 6 good citizens, that report and do all the things that 7 would be defined within, you know, a trusted 8 environment, to facilitate this flow of XML information 9 that can be transformed. 10 That thing then -- that level of trust has 11 not been established and it creates that fear of copies 12 flying everywhere without concern. 13 ALLAN ADLER: But, again, and it's because 14 it's part of a regulatory approach for which people say 15 there is scant additional appropriations for them to do 16 what is necessary, or they just simply disembowel having 17 the jurisdictional responsibility. 18 So, for example, if you want to move forward 19 with a trusted intermediary approach, then building on a 20 question Maria asked in the last panel is: Why wouldn't 21 you do that through a licensing relationship between the 22 producer of these materials and the trusted 0122 1 intermediary, rather than the trusted intermediary 2 gaining its authority under a copyright exemption, when 3 the rest of the regulatory framework around it isn't it 4 place to ensure that that person is, in fact, a bona 5 fide, authorized entity; and that it's conduct, once it 6 has access to these materials, will comport with the 7 regulations. 8 GEORGE KERSCHER: But they're not mutually 9 exclusive and you -- you know, if -- you do need to have 10 the trusted relationships with the organizations, and 11 also the many publishers who do not have the will or 12 capabilities to make accessible versions to play with 13 the trusted intermediaries. You still need that 14 exception available. 15 ALLAN ADLER: So, I mean, we're working with 16 them now -- in answer to Maria's question before when 17 she asked about the incentives for a market-based 18 approach to this -- that doesn't mean that publishers 19 aren't currently doing a variety of things. As I said, 20 publishing is a sectorial industry where different 21 publishers have different perspectives on this. 22 So, just to give you an example of three 0123 1 things. Recently some two dozen publishers announced 2 that they have signed agreements with Bookshare to 3 provide, over the next few years, tens of thousands of 4 their books, their backless books to Bookshare so that 5 those will be available in accessible forms. That 6 includes publishers like Random House, HarperCollins, 7 Scholastic, Hachette, O'Reilly, Perseus Books, and 8 Townsend Press, but clearly it doesn't include others 9 who, for whatever reason, have decided that they're not 10 interested -- at the moment at least -- in that kind of 11 a relationship. 12 Similarly in the wake of the announcement 13 about the Kindle 2, there was recently the introduction 14 of the Kindle DX, as you know, which was touted as being 15 able to hopefully be used, not only for newspapers, but 16 also specifically for textbooks. And in that same 17 announcement you had leading textbook publishers, 18 Cengage Learning, John Wiley and Sons, and Pearson, who 19 together comprise about 60 percent of the higher 20 education textbook publishing industry, have agreed that 21 they're going to provide their books through the 22 Kindle. But, again, the others who comprised that other 0124 1 40 percent apparently, for whatever reason, aren't there 2 yet. 3 So, there is a diversity here. The 4 marketplace is producing results. It's doing it in 5 different ways, depending upon how these different 6 players, who are in competition within their own 7 spheres, see it in their best interest to come forward 8 now. 9 And I would suggest to you that, again, the 10 only reason they're not yet seeing it fully in their 11 best interest to come forward with a universally 12 designed product that incorporates accessibility at the 13 get go and put that out into the marketplace, is because 14 they don't have a full understanding of how that is 15 likely to go forward in the face of a continuing 16 regulatory approach based on a copyright exemption. 17 MARIA PALLANTE: Thank you. Mr. LaBarre and 18 then Mr. Thomas. 19 SCOTT LEBARRE: Thank you. You know, civil 20 rights have never been accomplished or achieved by 21 operation of the market and never will be. 22 With respect to the comments regarding IDEA, 0125 1 I think that our perspective is, it's not been an issue 2 of the trusted intermediaries, it's really been an issue 3 of compliance of the publishers to create the files. 4 And even more of a problem has been the local 5 educational agencies not complying with the law. And 6 that is from our perspective. 7 And then I want to take this time to talk 8 about initiatives of the National Federation of the 9 Blind in this area. And I guess this goes with the 10 theme of removing the epidermis of your favorite or 11 least favorite domesticated animal. In other words 12 there are many ways to get that accomplished. 13 We come at this from a variety of 14 perspectives. We believe firmly in advancing technology 15 and sort of trying to take away the arguments about 16 whose copyright is it and just get direct access to 17 whatever it is. 18 For example, I speak of the KNFB Reader, 19 which is a hand-held cell phone that can snap a picture 20 of a page and read it out loud. And it's virtually 21 instantaneous now. The cost of which keeps coming 22 down. 0126 1 We are, of course, involved in the Reading 2 Rights Coalition involving the Kindle 2. But that's not 3 just relevant to the Kindle 2, it's relevant to a wide 4 variety of access to literacy. Because that's what 5 we're talking about here, it's access not just to the 6 book, but it's access to literacy and what literacy 7 brings. 8 We are involved with the effort of the Louis 9 Braille Commemorative Coin. Why is that important? 10 That promotes braille literacy. We know that one of the 11 reasons that people can make the argument -- although I 12 don't accept it -- but make the argument at least, that, 13 you know, braille is too expensive, et cetera, is that 14 not enough people read braille. The more people that 15 read braille, perhaps, the more the cost can come down. 16 And we believe braille is a part of literacy for the 17 blind; and, thus, the literacy program connected with 18 the sale of the Louis Braille Commemorative Coin. As 19 most people know Louis Braille was born 200 years ago, 20 and the striking of this coin celebrates that birth. 21 And, finally, I guess I'm just sick and tired 22 of the idea that, you know, all these things that are 0127 1 being done for the blind are special, or exemptions, or 2 exceptions, or whatever. I really like what 3 Dr. Kerscher has been talking about, in terms of we've 4 got to think about this from a universal design angle. 5 And we just have to do it and make a commitment to it. 6 Because publishers don't -- the book's got to start 7 somewhere. And in these days the book does start in a 8 technological form. 9 You know, after you get the manuscript from 10 the author, who usually does it now on a computer, but 11 not all of them, of course, but a lot of them do now. 12 And you will see that more and more. There is a digital 13 copy. And the more we think about universal design, and 14 the more we just make it happen, the less there will be 15 of this argument about cost. 16 MARIA PALLANTE: Thank you. Mr. Thomas and 17 then Mr. Aiken. 18 BRAD THOMAS: Sure. I just wanted to talk 19 briefly about new initiatives underway at RFB&D. 20 Mr. O'Reilly referred to the human audio versus 21 synthetic speech discussion. And RFB&D does continue to 22 be dedicated to human audio. One of the commentors to 0128 1 this request talked a little bit about the importance of 2 understanding toning, and inflexion in speech, and the 3 different capabilities that human audio provides in that 4 area. 5 We are expanding and changing fundamentally, 6 really, our delivery platforms for that. And I spoke a 7 little bit about this earlier. Mr. Adler referred to 8 the evolution away even from CDs now. And we've seen 9 that within the last year. We've introduced two 10 different downloadable versions of our services. And 11 already within that year I was told last week, I think, 12 that nearly half of the books that are requested from us 13 are already via the downloadable formats. So, we're 14 certainly seeing that. 15 The downloadable formats offer more 16 flexibility than the CDs. One of the versions of our 17 formats plays on a Windows Media platform, so, no 18 specialized playback equipment is required. And then 19 for portability it's downloadable on any -- or most 20 commercially-available MP3 players. So, we're really 21 removing some of the cost barriers and portability 22 challenges. 0129 1 And then the other thing to add is, you know, 2 having made the statement of our dedication to human 3 audio, we certainly recognize the increasing importance 4 of text-to-speech technology. Clearly there's a high 5 degree of flexibility with that format, and we're moving 6 into that area as well and expanding, as part of 7 availability for those formats. 8 MARIA PALLANTE: Thank you. Paul. 9 PAUL AIKEN: Yeah, I want to bring up one 10 quite large private initiative with respect to 11 accessibility. And that's the settlement of our class- 12 action lawsuit against Google. I'm sure you've all 13 heard of. If approved it will make tens of millions of 14 out-of-print books available, not just to those who can 15 read in a traditional manner, but also readers with any 16 sort of print disability. The settlement commits to 17 making the electronic text to be available in 18 conjunction with screen enlargement, voice output, and 19 refreshable braille displays. This is -- you know, this 20 is revolutionary. This would bring an enormous volume 21 of works and make them accessible to the blind, the 22 equivalent of several large academic libraries and 0130 1 shouldn't be ignored in this context. 2 MARIA PALLANTE: Thank you. Does -- yes, 3 Mr. Chapman. 4 PETER CHAPMAN: Two quick points, one going 5 back to the NIMAC issue. We intend to sell the HTML 6 book. And, of course, we also intend to price it in 7 line with our other eBooks. So, we don't intend to 8 significantly discount it nor significantly raise its 9 price. But it makes obvious sense that we can't sell it 10 if there's an alternative distribution which is for 11 free. And while we are willing to sell it directly or 12 sell it with partners, we can't compete when the 13 alternative doesn't cost anything. 14 The second point I want to jump on, the actor 15 recorded audio bandwagon a minute ago. We have the 16 ability to -- in Pearson we use both synthesized and 17 actor recorded audio. And I profess no specialized 18 knowledge here, other than to talk with my literature 19 teams constantly. And it is they're uniform decision to 20 go with actor recorded audio, especially at the younger 21 grade levels, especially in literacy, for what should be 22 obvious reasons. It just produces a better learning 0131 1 experience. 2 The other thing that struck me, which 3 surprised me, is I would have thought that synthesized 4 audio is much less expensive. It turns out that may not 5 be true. In some circumstances it probably is, in some 6 circumstances it isn't. Because you have to 7 presynthesize the audio. And there -- even the state of 8 the art of synthesized audio, is not good enough for 9 textbooks in many instances and it has to be tweaked, 10 and that's hand work. And by the time you've done that, 11 the cost differential between that and hiring an actor 12 and getting a polished recording is less than you would 13 think, less than I thought. 14 BRAD THOMAS: Can I ask one quick question 15 about -- 16 MARIA PALLANTE: Please. 17 BRAD THOMAS: -- that point? If you're doing 18 charts and graphs as well and you're going back and 19 adding human narration of those charts and graphs, I 20 mean, does it make more sense to do the human audio on 21 the front end than the synthetic speech, and then go 22 back in and add the human audio descriptions of the 0132 1 charts and graphs, or is that not really a 2 consideration? 3 PETER CHAPMAN: The way that -- I'm in the 4 midst of releasing some audio textbooks in the next 5 couple of months. And there's a complicated process. 6 But fundamentally you start from the print ready PDFs, 7 that which goes to the book, to go to the publisher. 8 And that information is given to a company that we use 9 and they record the audio. They have a polished actor 10 probably rehearse the script and read it. That produces 11 an audio MP3 file and an XML file. That XML file is 12 then merged back with the PDF file and that produces the 13 book in our case. So, all that must be done before the 14 book is released. It's a process that happens 15 beforehand. And whether you hire an actor to record 16 that audio, or you feed it into one of the synthesizer 17 devices which produces a synthesized audio, it doesn't 18 really matter. You have to merge that audio, be it 19 synthetic or actor, with the text -- with the PDF and by 20 this XML. So, I don't think it matters. 21 But my point earlier was that it turns out 22 that the synthesized audio is not good enough and 0133 1 typically has to be tweaked, at least in our industry -- 2 in our part of the industry. 3 MARIA PALLANTE: Mr. Mudd, and then 4 Dr. Kerscher, and then Allan. 5 GARY MUDD: Thank you. I just wanted to 6 bring us back from where I stand, and that's speaking up 7 for the braille art tactile learner. I love the digital 8 audio that's out there, whether its synthesized or human 9 voice. It's another way to access information. But 10 please don't do harm to braille, because to the tactile 11 learner -- and there are many of us out there -- Peter, 12 for instance, you -- was that a geography book that you 13 showed? 14 PETER CHAPMAN: It was government. 15 GARY MUDD: Government. Okay. Just to 16 emphasize the tactile. It -- let's say the State of 17 Texas, if it's typically -- if it's just an audio 18 description of the State of Texas, I'm subject to your 19 interpretation of what that state looks like. But if 20 it's a tactile representation, I know what it looks 21 like. So, those things need to be kept in mind with all 22 the digital talk. And I love it, I appreciate it, and I 0134 1 think we definitely need to explore that to the full 2 extent, but please don't forget about braille. 3 MARIA PALLANTE: Dr. Kerscher. 4 GEORGE KERSCHER: So, the doctoring of the 5 text files we're processing with a TTS engine can be 6 very time comsuming and expensive. That's not taking 7 place on the Kindle 2. They're just doing pretty much a 8 raw dump. And, yes, they did go back and fix up Barack 9 Obama's initiation. But to do that for many, many, many 10 of the words, and there are some things that they're not 11 going to do, but that might be done by a publisher who's 12 going to produce a textbook that's using TTS. So, 13 that's one of the really good points. 14 There's a couple other initiatives that -- 15 just to let you know about. There's a group called 16 CourseSmart, coursesmart.com. It's funded by 17 publishers, I believe. And they have, like, 6,300 18 college titles. The problem is that they're all 19 inaccessible. There is no requirements for 20 accessibility going into that. And it's a -- not a 21 product that a blind person could use, or most people 22 with disabilities, so, that's real sad. 0135 1 The DAISY Consortium is the maintenance 2 agency for the ANSI/NISO Standard, that's the official 3 term ANSI/NISO Z39.86. And we're undergoing a revision 4 to the standard. And we do want to add video to the 5 standard. And we want to expand the XML that could be 6 used to make it more flexible and easy for publishers to 7 use whatever XML they have in-house, and not require 8 them to use just one flavor of XML. 9 And then we're also providing the open source 10 tools for the automatic manipulation. And this year 11 we're coming out with a interactive authoring tool that 12 would help in the audio production. And it's open 13 source and we'd love the participation of everybody in 14 that. We're severely constrained financially in doing 15 what we can, but trying to focus strategically on the 16 technologies that will give you the biggest bang for 17 your buck. 18 MARIA PALLANTE: Thank you for that 19 information. 20 Mr. Adler, and anybody else? 21 ALLAN ADLER: Yeah, I just -- two comments. 22 One was I didn't want one to leave hanging an impression 0136 1 that some people might have gotten from Scott's comments 2 about publishers not cooperating with NIMAC. In an 3 article published in the Educator earlier this year by 4 the staff of NIMAC at the American Printing House, 5 there's this quote, the response from publishers has 6 been greater than we ever expected, with over 70 7 publishers currently working with us, and over 12,000 8 file sets submitted in just our first 20 months of 9 operation. The reality is, is not that there isn't 10 enough input of files coming from publishers, it's that 11 they do not have the capability of being able to handle 12 that many files coming in as quickly as they have been 13 coming in, and being able to establish and verify the 14 accounts of the authorized users to come and use those 15 files. 16 And then just in the area of initiatives, I 17 wanted to mention that, again, noting the sectorial 18 nature of the industry and the needs of people in a 19 particular context on the ground, we are in the process 20 of launching the beta version of something called Access 21 Text Network, which is a joint project resulting from an 22 agreement between the Association of American Publishers 0137 1 and the Alternative Media Access Center set up by the 2 Georgia Board of Regents and the University of Georgia. 3 And this is going to greatly expedite the ability of 4 colleges and universities' DSS offices all around the 5 country to be able to find out where textbooks that are 6 needed in electronic files for use to create alternative 7 formats are available. 8 And, in fact, even though we are -- as I 9 said, we're only in the process of the beta launch late 10 this spring, already we're finalizing membership 11 agreements with the DSS offices and academic 12 publishers. And the database is importing over 300,000 13 book titles that are used in academic courses at 14 colleges and universities across the country. 15 So, this is an example where, again, perhaps 16 it's not the market-based approach based on universal 17 design, but it's an approach that has been welcomed by 18 the DSS offices on college campuses all across the 19 nation because it suits their immediate needs and it 20 fits with their immediate needs. But, again, it plugs 21 into the regulatory approach based on the copyright 22 exemption in doing so. 0138 1 MARIA PALLANTE: Dr. Kerscher. 2 GEORGE KERSCHER: So, the Access Text 3 provides a link between the disabled student service 4 officer and the publisher who has some kind of files to 5 give them, and then the DSS office has the 6 responsibility to manufacture the book in an accessible 7 form and turn it over to the students. So, they're not 8 getting completed books, they're getting the data -- 9 ALLAN ADLER: Right. 10 GEORGE KERSCHER: -- for the manufacturing of 11 the books. 12 ALLAN ADLER: Right. 13 MARIA PALLANTE: We have about 10 minutes. 14 Do any of my colleagues have questions? 15 STEVEN TEPP: Sure. 16 MARIA PALLANTE: Steve. 17 STEVEN TEPP: I'll come back to you, 18 Mr. Adler. 19 ALLAN ADLER: Uh-huh. 20 STEVEN TEPP: You, in your written comments, 21 refer to the relatively positive development of a 22 relationship between publishers and Bookshare. And in 0139 1 particular you referenced as part of that developing 2 partnership the Seven Point Digital Rights Management 3 Plan. So, I think a lot of what we're talking about 4 today is trying to encourage those sorts of 5 partnerships. So, I was wondering if you could spend a 6 few moments telling us what was unique or, if not 7 unique, at least significant in the magic that made that 8 relationship develop as well as it did, and what we can 9 do to foster a repetition of that set of events 10 vis-a-vis publishers and other organizations? 11 ALLAN ADLER: Well, as I've indicated in my 12 statement before by mentioning the trade publishers who 13 are working with Bookshare, there aren't many members of 14 AAP and many members of the publishing community who 15 think that Bookshare has been organized in a fairly 16 responsible manner as an authorized entity under the 17 Chafee Amendment. And they have worked with Bookshare 18 to develop the processes, both for their volunteer 19 agreements involving the scanning of works into digital 20 form, as well as the agreements that they have with 21 their subscriber membership, who for a nominal fee get 22 access on an annual basis to the full library of 0140 1 Bookshare, which now I believe something around 40,000 2 works and is exponentially increasing annually. 3 But there are some members who are weary of 4 Bookshare despite all of this. Particularly educational 5 publishers are concerned about Bookshare's desire to 6 expand its work beyond US borders. And Bookshare has 7 been commendably cautious about doing that but 8 nevertheless it's fairly ambitious to do that. 9 STEVEN TEPP: What's -- so, can I interrupt 10 you for a second? Let's drill down a little bit. 11 ALLAN ADLER: All right. 12 STEVEN TEPP: What specifically is the 13 concern about expanding beyond US borders, and how is 14 that distinct from a relative lack of concern about 15 within the US? 16 ALLAN ADLER: Well, because we don't know 17 that Bookshare is able to handle the responsibility of 18 dealing with questions that arise about how those 19 materials are used once they are, in fact, transmitted 20 outside the United States; and whether or not it feels 21 that it has the responsibility, indeed, to monitor the 22 use of those materials pursuant to these agreements. 0141 1 And, even if they do, whether they actually can enforce 2 their agreements in other countries where the 3 infrastructure may be different, where the basic laws, 4 both of copyright and with respect to contract may be 5 very different than those in the United States. 6 But recently we've had a fairly good 7 relationship with Bookshare, despite all the bumps, is 8 that right from the outset they indicated that they 9 understood the concerns of the publishers about both 10 making sure that their works were not subject to a wide 11 spread unauthorized reproduction and distribution so 12 that they would compete with them. And they also 13 understood, very importantly, that book publishers often 14 don't have the full rights to be able to make works 15 available in digital formats. 16 One of the issues that came up with IDEA 17 Legislation, for example, was the fact that we needed a 18 separate amendment to the Chafee Amendment in order to 19 protect publishers from copyright infringement 20 liability, if, in fact, they provided the electronic 21 files in the NIMAC format that were required by that 22 legislation. So, we don't have that kind of protection 0142 1 at the moment, the publishing community, for providing 2 these materials in digital format for anything other 3 than the IDEA purposes. But nevertheless there is a 4 risk. 5 The people at Bookshare understood that and 6 they recognized that for certain kinds of works where, 7 perhaps, the publisher didn't have digital rights to the 8 images, or illustrations, or other portions of the work 9 apart from the literary work itself, that those works 10 could not be put into the system under the same terms as 11 what other works to which the publishers had the full 12 rights to exploit. 13 MARIA PALLANTE: Okay. We're getting very 14 close to the -- to 1:00, and I wanted to give Michelle 15 the floor one last time before we close for lunch to -- 16 MICHELLE WOODS: Thanks. 17 MARIA PALLANTE: -- wrap it up. 18 MICHELLE WOODS: I'd like to circle back to 19 DRM we were talking about in the prior panel, and, 20 Dr. Kerscher, in particular some of the comments you 21 made in your written submission about concerns with 22 prevention of legitimate use of materials by the target 0143 1 disabled population. You then gave some suggestions 2 about guidelines being established to encourage 3 education on proper use of materials, administrative 4 steps to prevent abuse, passwords for downloads, and 5 fingerprinting and watermarking of files to control the 6 use of content by the target disabled population. And 7 suggested that those might be -- I believe if I'm 8 reading this correctly -- an alternative to the use of 9 DRM and strong encryption. And I wondered if you could 10 elaborate a little more on your thoughts about what 11 these alternatives might be and how they might improve 12 accessibility. 13 GEORGE KERSCHER: The -- what I outlined is 14 what Jim Fruchterman and Bookshare are using in their 15 Seven Point Plan. And the DAISY Consortium came out 16 with a position statement about this, favoring best kind 17 of approach over actual hard core encryption. Right now 18 Recording for the Blind and Dyslexic uses hard core 19 encryption, so does the Library of Congress. So, I've 20 got books that I can't use on any other device except 21 the -- a particular device that I might use. 22 So, it's absolutely legitimate use. It's my 0144 1 player and -- but I have to use a particular player to 2 use it and I can't move it in between different reading 3 systems. So, I've got -- there's for example, DAISY 4 Reading Systems on cell phones now. And it would be 5 very convenient to take that content and move it over to 6 my cell phone and play it, but that cell phone device is 7 not -- does not support the encryption. 8 So, the watermarking and fingerprinting of 9 content provides a mechanism to track materials, if we 10 find that it's abused. But to wholesale encrypt 11 everything, it prevents legitimate use. I think 12 especially in the schools it could be very torturous for 13 teachers to have one player, one book associated with 14 it, as opposed to having something that was more 15 flexibly used with a variety of different hardware and 16 software devices. 17 MARIA PALLANTE: Well, thank you, very much. 18 I think with that we're going to end the morning. It's 19 been extremely comprehensive and very helpful to the 20 government panel. I know, Paul, you need to go back to 21 New York promptly. Thank you for the Authors Guild for 22 coming. And for everybody else I hope you will join us 0145 1 promptly at 2:30 for possible actions to facilitate and 2 enhance access. 3 (Pause in proceedings.) 4 5 A F T E R N O O N S E S S I O N 6 MARIA PALLANTE: Good afternoon, and to those 7 of you who were here this morning, welcome back. I’m 8 Maria Pallante from the U.S. Copyright Office. My 9 colleagues up here at the table are Michael Shapiro 10 from the U.S. Patent and Trademark Office and the heat 11 of the U.S. Delegation. To his left is Neil Graham 12 from the Patent and Trademark Office as well. To my 13 right, Michelle Woods and Steven Tepp, both senior 14 counsel for Policy and International Affairs here at 15 the Copyright Office. 16 And like this morning, Paula Penia (ph) will 17 be timing your statements as we open. Please keep them 18 to five minutes. And if you exceed five minutes you’ll 19 hear the bell, and that’s your queue to wrap up. We 20 have a lot of time this afternoon, so there’s always 21 the possibility that we’ll finish early. We’re 22 optimists up here. However, take all the time you 0146 1 need. We have until 5:15 if necessary. 2 So the topic of course is Possible Actions to 3 Facilitate and Enhance Access to Copyright at Works for 4 the Blind or Other Persons With Disabilities. We 5 really hope that you will hit on a number of different 6 topics, including developing standardized accessibility 7 formats and expand on some of the things we learned 8 this morning; establishing trusted intermediaries going 9 forward to coordinate resources; eliminate unnecessary 10 duplication of accessible works and ensure best 11 practices; providing technical assistance, coordination 12 and educational outreach; promoting market-based 13 solutions achieved through private sector copyright 14 licensing or other agreements; and developing binding 15 or nonbinding international instruments, including a 16 treaty that would establish minimum requirements for 17 limitations and exceptions for the blind, visually 18 impaired and other reading disabled persons. 19 I’ll introduce the participants. Starting to 20 my left, we have Jamie Love from Knowledge Ecology 21 International. We then have Carrie Russell from the 22 American Library Association of Colleges and Research 0147 1 Libraries and Association of Research Libraries -- a 2 lot of libraries, Carrie -- Allan Adler from the 3 Association of American Publishers, Scott LaBarre 4 representing the National Federation of the Blind; 5 Keith Kupferschmid from Software and Information 6 Industry Association; George Kerscher from the DAISY 7 Consortium; Rashmi Rangnath from Public Knowledge; Gary 8 Mudd from the American Printing House for the Blind; 9 Danny O’Brien here from the Electronic Frontier 10 Foundation; Fritz Attaway from the Motion Picture 11 Association of America; and Peter Chapman from Pearson. 12 Jamie, we’ll start with you if you’d like to give a 13 five-minute opening statement. 14 JAMES LOVE: Thank you. Well, Knowledge 15 Ecology International is an NGO. We have an office in 16 Geneva, we have an office in Washington, D.C. And we 17 think there are several things to be done to make 18 things better, but one thing I’d like to talk first 19 about is the proposal by the World Blind Union to have 20 a treaty for improved access for blind, visually 21 impaired and other reading disabled persons. 22 The proposal by the World Blind Union was 0148 1 something that we had an opportunity to work with the 2 World Blind Union, some of the people in the panel 3 here, like George Kerscher, people in the DAISY 4 Consortium and Bookshare, America Library Association - 5 - a lot of people in other countries were involved in 6 this exercise to sort of look at what might be done at 7 the international level to make it easier to facilitate 8 the importing and exporting of works which are done in 9 accessible formats. And I think in our written 10 comments we submitted some information or some 11 submissions that both went to the issues of standards, 12 but also went to the issues of language issues and sort 13 of the distribution of language. 14 I think for over 20 years, IFLA with Libraries 15 and the World Blind Union has been asking the 16 international community to make it easier to share 17 works which are created in one country with people who 18 have reading disabilities in a different country. Now, 19 this morning, I believe you had a pretty impressive 20 tutorial on how expensive and difficult it is to create 21 works that are accessible and how many different types 22 of needs there are. I mean, some people need Braille, 0149 1 some people may need a variety of different things. 2 MARIA PALLANTE: Jamie, I think that may be 3 your Blackberry interfering with your microphone. 4 JAMES LOVE: Oh, is that right? I’ll put it 5 away. Good call. I’m not really a long-time 6 Blackberry person, so I wouldn’t have thought about 7 that. 8 And there’s never enough. There’s never 9 enough copies that are made available. There’s never 10 enough money made available to do things. There’s 11 never enough economic incentive for things on the one 12 hand. So the idea of creating a system where if works 13 are created in the United States that are accessible, 14 they could be shared with somebody who, if it was an 15 English document in some of the 60 countries where 16 English is an official language, or if it was one of 17 the countries like the half of Europe -- the 34 percent 18 of Europe which speaks English as a Second Language -- 19 that there could be more sharing of documents. And 20 that Americans such as my mother-in-law who went blind 21 at the end of her life and was a native French speaker, 22 could get access to works that were -- she was used to 0150 1 reading things in French, and that was just completely 2 closed off to her at the end of her life, and I think 3 that was unfortunate. So I think that having a global 4 system that has import and export is really kind of an 5 important idea. 6 Another feature of this proposal I thought was 7 really important, was in the U.S. you have an 8 authorized identity, the Chafee Amendment and some of 9 the educational things which are focused very much on 10 non-profit institutions, the authorized entity 11 approach. And in the World Blind Union proposal, I 12 think that’s embraced as the idea of something every 13 government really needs, is a core and a backbone of a 14 system of exceptions. But they also had the idea that 15 there could be a somewhat less broad exception that 16 would apply to commercial entities to create 17 opportunities for businesses to provide products and 18 services that would meet certain needs in cases where a 19 publisher wouldn’t really have done, wouldn’t have made 20 accessible work available in those limited cases. 21 So for example, we have this case where the 22 Kindle -- and I’ve got a copy of the Kindle here, and I 0151 1 have a book on here that has reading disable on it from 2 Toni Morrison where you can’t turn on the text to 3 speech -- the idea, if a person doesn’t really make 4 available something that is accessible and there’s not 5 an accessible copy i9n some way, there’s no barrier – 6 that the exception would come into effect in those 7 cases. 8 I really think that the case of the Kindle -- 9 I think I’m probably short on time so I’m going to wind 10 up right here -- is a shocking and appalling case. 11 That you’ve got a technology which is mainstream, that 12 this has 250,000-plus titles available, and the policy 13 so far by Random House and by the author scale is to 14 de-engineer the accessibility, to take what is a 15 standard accessibility thing, which is text to speech 16 and make it so it doesn’t work -- like this book on it 17 I have from Toni Morrison and all of Adonis Books. It 18 does allow you to change the font size. There’s a key 19 for it. You can make it big, you can blow up the 20 print. That hasn’t been disabled yet -- but this other 21 thing. 22 And I think like -- 0152 1 MARIA PALLANTE: Jamie? 2 JAMES LOVE: -- the contracts -- the final 3 thing I’d say is just that I think that a contract that 4 says that you cannot make text to speech should not be 5 an enforceable contract in the United States. Thank 6 you. 7 MARIA PALLANTE: And everyone, please keep in 8 mind, you’ll have plenty of time later on to get back 9 into the points that you don’t get to make in your 10 opening statement. Carrie? 11 CARRIE RUSSELL: I’d like to reserve my 12 comments -- what I want to talk about right now is the 13 International Treaty, because that’s where I think we 14 have the most input. As Jamie said, the American 15 Library Association was involved with the meetings that 16 were held with World Blind Union about developing an 17 international treaty, and I think that they’re 18 absolutely to be commended for all the work that 19 they’ve done. 20 When I was in those meetings, I learned a lot 21 of stuff about just the incredible inequities across 22 the world. And I’m a librarian, and for me, reading is 0153 1 so central to having a successful life, and I think 2 that everybody should really be able to read. So 3 anything that we can do to enable that I think is very, 4 very critical. So we do support an international 5 treaty, but I have to also mention that in terms of the 6 people that I talked with, librarians are afraid, are 7 concerned that anything that would happen 8 internationally might impact what they have already now 9 in terms of Chafee. 10 And we know that international treaties are 11 supposed to be -- this is just the minimum -- but so 12 often minimums become maximums. Minimums becoming 13 poured through a three-step test and then all of a 14 sudden things are not as strong as they were before. 15 So that would be our primary concern, but we do endorse 16 the treaty. And I can talk more about that as we go 17 through the question and answer. 18 MARIA PALLANTE: Thank you very much. Allan? 19 ALLAN ADLER: (Off mic). 20 MARIA PALLANTE: Okay. Thank you. Scott 21 LaBarre? 22 SCOTT LABARRE: I’m sure precedent is being 0154 1 set here, but I’m going to reverse it. I guess in this 2 topic area, we feel that there would be a lot of 3 benefits from an international treaty or some form of 4 modification. Certainly, if it’s a sound treaty like 5 the proposal that’s been worked up, it would help make 6 the argument in this country even stronger for a pro 7 access point of view. 8 Of course, secondly there is great benefit to 9 sharing books across borders. Blind people in this 10 world live largely in poverty. It’s a lack of 11 education, lack of literacy, lack of power that we 12 discussed -- or I discussed this morning. And the more 13 we can promote literacy throughout the world through 14 access to books, I think it only raises the class to a 15 higher status. 16 And finally, maybe an international treaty, if 17 it addressed the DRM issues and the anti-circumvention 18 issues, would be very hopeful to get around some of 19 those issues and establish some norms. So I think 20 there’s a great benefit in this, and I hope the process 21 continues to move forward. 22 MARIA PALLANTE: Thank you. Keith? 0155 1 KEITH KUPFERSCHMID: Thank you for having me 2 here today. As our name implies, the organization I 3 represent, the Software and Information Industry 4 Association, we represent software companies and 5 digital content companies. I heard somebody talk about 6 their members struggling to sort of cross that digital 7 divide. Well, that’s something all of our members have 8 done. They wouldn’t be members of SIIA if they hadn’t 9 already done that. They make digital product, digital 10 content software which of course is digital. They as 11 well as SIIA itself, have long recognized the 12 challenges faced by the blind and visually impaired in 13 accessing copyrighted software and digital content and 14 have long worked with these organizations that 15 represents the interest of the blind and visually 16 impaired community toward the goal of improving access 17 to these works. With entities like the Section 508 18 Accessibility Board and the European Commission, SIIA 19 members have worked constructively and on a 20 collaborative basis, to provide usable tools and 21 services that enable all citizens to participate fully 22 in the information-based society. 0156 1 We have also, as well as our members, have 2 also worked directly with the blind and visually 3 impaired to ensure that the entire community can use 4 the software products and digital content products and 5 services in formats that do meet their needs through 6 things like developing best practices and technical 7 assistance and educational outreach, as well as 8 promoting various market-based solutions that we’ve 9 gone into I think in some of our comments, and 10 significantly modifying the functionality and form of 11 the specialty software products to make them more 12 accessible. 13 Of course, there’s no doubt -- it was just 14 talked about this morning -- that some types of works 15 and some types of formats are further along in reaching 16 these goals than others. That should come as no 17 surprise. For the companies that I represent and the 18 type of works, there are certainly greater advancements 19 in accessibility for those products that are offered 20 over the Web rather than those that come in CD-Rom. 21 Largely because of screen reader technology, we 22 understand that that’s certainly not seamless and 0157 1 there’s some issues surrounding that, but it certainly 2 has come a long way. 3 And the one thing I want to add to my 4 hopefully brief comments is that in reviewing the 5 comments, I was a little surprised really by at least 6 what I perceived as a lot of agreement among some 7 comments. And I think that -- unless I’m ‘getting 8 something wrong here -- if you look at the number of 9 reply comments that were filed, there weren’t a whole 10 heck of a lot, which is pretty unusual for a copyright 11 office proceeding. 12 To me, we can’t overlook that. It seemed like 13 there was a lot of agreement. I’ll exclude certain 14 issues like DRM and the Chafee from that, because there 15 certainly were disagreements there, but in terms of the 16 goals that we all had in mind, the best way to achieve 17 these goals, which seemed to be an overwhelming support 18 of sort of market-based solutions, market place 19 solutions, and the numerous issues, several issues that 20 stand in the way of achieving those goals -- quite 21 frankly, only one of which is copyright. It seemed 22 like I’m just a little out of my element here, because 0158 1 it seemed like more the issues that stand in our way 2 are not really copyright-based at all. 3 It became clear that there were a lot of areas 4 that were at least in broad context agreement, and it 5 also became clear that these are pretty complicated 6 issues. I mean, in surveying our members there was 7 really no one expert. We might have someone who there 8 are very complicated issues related to technology, 9 copyright, interoperability and compatibility, to 10 things like capacity building and accessibility. And 11 it seemed to be very, very complex issues and it seemed 12 like certainly those are issues that we need to focus 13 here in the United States in getting our house in order 14 certainly before we brought our problems outside of the 15 United States and from what I understand, certainly 16 things are a lot more difficult and a lot more complex. 17 So if you were to come to me and say, gee, what’s the 18 best way to solve these problems, I don’t think an 19 international treaty would have been at the top of my 20 list. That’s it. 21 MARIA PALLANTE: Thank you. Dr. Kerscher? 22 GEORGE KERSCHER: Daily Consortium is made up 0159 1 of libraries and organizations from around the world. 2 The major libraries are full members. They also make 3 up representatives of the IFLA -- it was called the 4 Section for the Blind and they just changed their name. 5 I think it’s for the Handicapped at this point, so it 6 merged a couple of sections. 7 But I believe that this group can make up a 8 backbone of trusted intermediaries that could work with 9 an international copyright exception that would have 10 immediate huge gains to organizations and people 11 throughout the world. So it was the IFLA World Blind 12 Union and DAISY that have been talking with WIPO for a 13 number of years now, and how the treaty got promoted to 14 where we have it right now. 15 The way I envisioned this working is we first 16 of all need to have a way to move an exception that 17 allows us to move content across a national border. 18 The kids up in Canada are crying for the books that we 19 have here in the United States, and we cannot give it 20 to them. And it’s very hard to say I’m sorry, we don’t 21 have a copyright law that allows us to give this to the 22 CNIB, Canadian Institute for the Blind and have them 0160 1 provide it to you. 2 But the way I envision this working is that a 3 good citizen like the Recording for the Blind and 4 Dyslexic or Bookshare, would work with a good citizen 5 in Canada -- CNIB -- that distributes content legally 6 under their copyright exception. What we need to be 7 able to do is move the book from RFB&D to CNIB. We 8 both use the same format. The DAISY format is being 9 used throughout the world, so that’s good. The 10 players, it’s the same players that are used throughout 11 the world. And RFB&D would be able to move it to 12 Canada, to any country that we had a trusted 13 relationship with. So there’s a series of trusts 14 that’s going on here. 15 We would want to make sure that when we 16 provided a copy to CNIB for legal distribution in their 17 country, that it would go no farther. We do expect 18 that we’d recover some fees to help us cover our costs 19 of production. We would like to have a similar 20 relationship with RNIB and other libraries. Similarly, 21 we’d love to get titles that CNIB produced and RNIB 22 produced, all within a network, a trusted network where 0161 1 everybody’s gaining. 2 So in the developing world, there’s very few 3 titles. We’ve had a Developing Countries Program in 4 DAISY. We’ve established focal points in a whole 5 variety of different countries -- in Thailand, India, 6 Bangladesh, many, many other countries. The minimum 7 requirement that they’re saying to start a library in a 8 country is 1,000 titles. And many of these 9 organizations have sufficient funding to produce 80 to 10 100 or 200 titles a year, so it’s going to take them at 11 least five years before they’ve got a collection that’s 12 worthy of starting to distribute legally within their 13 country. The copyright exception would allow many of 14 the industrialized countries to help these 15 organizations out, build a collection that would have 16 huge immediate benefits. We want to work cooperatively 17 with the publishers, help them produce accessible 18 content that we could buy, and they could sell in any 19 country. But we have to have this exception to provide 20 us with the ability to start sharing content between 21 fine organizations throughout the world. Thank you. 22 MARIA PALLANTE: Thank you. Rashmi? 0162 1 RASHMI RANGNAT: Thank you, Maria. Thank you 2 for having me on this panel. I want to talk about two 3 issues today. The first one is market-based solutions 4 to increase access and the second one is of an 5 international treaty establishing minimum requirements 6 for facilitating access to the blind. 7 The first issue. We believe that market-based 8 solutions are important and that they should be 9 encouraged. Oftentimes they permit entities to 10 overcome some of the limits of the Section 121 11 exception who qualifies as an authorized entity, who 12 qualifies as a blind person, and what qualifies as an 13 accessible copy. 14 However, the market is not the answer to all 15 the problems. As a study published by WIPO and 16 referenced in the Federal Register Notice mentioned, 17 creating accessible copies is expensive, and publishers 18 will not undertake the responsibility to create these 19 copies if they feel like the investment does not 20 justify return. As the WIPO study noted, this may be 21 the reason for positing the number of accessible copies 22 that are available; hence, the need for continued 0163 1 acceptance to copyright law to enable accessibility to 2 a wide number of works. In addition, past behavior has 3 shown that commercial entities are not always sensitive 4 to the needs of the blind. They have actively thwarted 5 technologies that would allow access. The Kindle is an 6 example -- everybody has referred to the Kindle. DRM 7 is used in a way that does not allow adaptive 8 technologies to work with publications. Even the 9 Copyright Office has -- these claims of harms to right 10 are based on dubious claims to rights which even the 11 Copyright Office in its 2003 rulemaking noted, may not 12 be available to the copyright owner. 13 The second issue is that of an international 14 treaty establishing minimum requirements for 15 limitations and exceptions. We believe that such a 16 treaty is important for two reasons. First it would 17 harmonize important (indiscernible: 24:05) and 18 facilitate easier movement of accessible copies. 19 Some of the reasons for the inability to 20 import and export may be that accessible copies are 21 made by specialized entities under limitations and 22 exceptions to copyright law; therefore rights in the 0164 1 copies may not be exhausted, and moving them across 2 national borders may divert an infringement of 3 copyright. Further, laws in different countries are 4 not uniform, and importing a copy into one country may 5 be beyond the scope of exception under which it was 6 made in the exporting country. 7 Second, an international treaty would offer 8 guidance to countries to craft limitations and 9 exceptions to copyright law. The current international 10 copyright regime provides extensive rights to copyright 11 owners, and it is difficult for many countries to 12 devise limitations, and studies published by the WIPO 13 have noted this. As one study published by Judith 14 Sullivan points out, international conventions do not 15 seem to have been drawn up with the legislator 16 delegating exceptions to copyright in mind; therefore, 17 an international treaty is essential. Further, an 18 international treaty would reconcile the copyright 19 regime with other international instruments -- for 20 example the Universal Declaration of Human Right, which 21 requires access to knowledge to be considered a 22 fundamental human right, which states are obliged to 0165 1 secure for their citizens. Thank you. 2 MARIA PALLANTE: Thank you. Mr. Mudd? 3 GARY MUDD: Thank you again, Maria, for 4 inviting us on the panel. The American Printing House 5 for the Blind, we are participating members of the 6 DAISY Consortium. We operate the NIMAC, the National 7 Instruction of Materials Access Center. However, we 8 are somewhat restricted with the funding that comes 9 from the U.S. Congress through the Department of 10 Education to serve the population of American citizens, 11 American visually impaired students. That being said, 12 there’s a part of us that wants to be a good world 13 citizen and believe in literacy for all people because 14 it does raise all of us up. However, the practical 15 side being a good citizen of the United States, sort of 16 makes us think that maybe we should try to get it right 17 in the United States before we try to export it. Thank 18 you. 19 MARIA PALLANTE: Thank you. Mr. O’Brien? 20 DANNY O’BRIEN: Thank you as well for giving 21 us the opportunity to speak on this panel on an 22 important topic. I’d like to sort of side-step the 0166 1 discussion of the international agreement and 2 concentrate on one of the other areas of discussion in 3 this panel, which is about technical norms, open 4 standards, and other ways that we can further enhance 5 access. In particular, I’d like to as a group 6 concerned with both individual rights and the 7 possibilities of new technology, to bring into scope 8 some of the other ways that innovation can be driven in 9 this area and the ways in which digital technology 10 enhances not only access but the tools that provide 11 access. 12 There’s a wider area of involvement here that 13 we see in other domains, sort of highly distributed 14 collective efforts that have led to Wikipedia, Lennox 15 and other tools. We see some of that power in the 16 communally-driven success of Bookshare, but I think 17 also we see this as a future promise in making reading 18 accessible. And I would like to emphasize the key 19 point here, which we believe that individuals in the 20 disabled community, as those best placed to determine 21 their own accessibility needs, should be empowered to 22 personalize the presentation of copyrighted works that 0167 1 they access, as well as be given the opportunity as 2 everyone else is in the digital world, to innovate new 3 presentation forms, which they can share with other 4 members of their community and, given the context in 5 which we discussed this, the world. 6 We feel empowering to say we’d use these in 7 this way is not only the most effective route to 8 meaningful access to works, the widest range of reading 9 disabled, but also has beneficial effects for everybody 10 in the digital creative echo system. To illustrate 11 this, let me give an example from the rich history of 12 individuals with disabilities’ involvement in the 13 history of modern technology. I know that there’s one 14 particular format that almost all of us use, mainly 15 because I read how to get here using it, which is 16 Adobe’s portable document format, or PDF. 17 One of the technologies used to convert the 18 previously accessibility and friendly PDF into a form 19 readable by screen readers and other assistive devices 20 was PDF to HTML, which was developed by a computer 21 scientist who I believe now works at Google, Karthik 22 Raman. He is himself blind. Transforming PDF to the 0168 1 Web’s native open and interoperable HTML makes PDFs 2 easier to read by Raman and his fellow blind users, but 3 it also makes PDF documents easier to access by all 4 Internet users. That code that Raman wrote is the code 5 that allows Google -- which I heard described by one 6 technologist as perhaps the most powerful blind user on 7 the Internet -- to read text and PDF in an accessible 8 format and make it searchable for all of us. 9 Transforming PDFs in this format makes them 10 accessible to everyone. The technologies that most 11 widely benefit the disabled community are those which 12 provide the widest range of transformations of this 13 original text. And this is because there’s no 14 universal fix for accessibility. For instance, one 15 user may be more comfortable reading the work on a 16 normal screen but at a much larger font size. A 17 dyslexic user may benefit from changes in the 18 foreground and background colors of text. A blind user 19 may be able to read at the same speed as a sighted 20 individual, as long as they are empowered to run text 21 to speech utilities at a far faster rate than the 22 average spoken speech, or indeed the default text to 0169 1 speech settings on devices like the Kindle. 2 In short, copyright law needs to provide 3 visually impaired users with access to works in formats 4 that give them the ability to transform these works for 5 their lawful users and an environment that facilitates 6 disabled users creation and access to tools which they 7 can adapt for their specific needs. We believe that 8 there are two requirements for that, and I’ll keep this 9 short because it’s in our comments and also I’m short 10 on time. 11 Those two requirements are within the domain 12 that we’ve been discussing of the exemptions, the 13 formats that should be available, open formats. DRM by 14 its very design locks down content to a set of pre- 15 authorized and predicted uses, and a transet of 16 transformations that may not best serve the needs of 17 visually impaired users and other reading disabled 18 users. And most importantly for us, it leaves no room 19 for vital innovation by the visually impaired 20 community. 21 Secondly, the Copyright Office already 22 recognized in its 1201 exemption rulemaking where works 0170 1 are unavailable in open formats, persons should be able 2 to circumvent, but not every person blind or not, is a 3 TV Raman. So everyone needs to benefit from the tools 4 built by such individuals. So we feel that exemption 5 should be widened to include the prohibitions in 6 1201(a)(2) and (b). I’ll end there. 7 MARIA PALLANTE: Thank you. Mr. Attaway? 8 FRITZ ATTAWAY: Thank you. In the notice 9 initiating this proceeding, the Copyright Office listed 10 a number of actions that might facilitate greater 11 access to copyrighted works by the blind, and most of 12 them I think are worth pursuing. Most of them relate 13 to voluntary efforts resulting from good faith dialogue 14 among the stakeholders to reach meaningful solutions 15 that will in fact facilitate greater access to 16 copyrighted works by the blind. The one possible 17 action that I don’t think will produce meaningful 18 results is an international instrument, whether it be 19 binding or non-binding. In most instances, copyright 20 is not the primary impediment to facilitating access to 21 the blind. In the case of movies, I don’t know that it 22 plays a role at all, but certainly it’s a small role. 0171 1 So a copyright treaty is not going to solve the 2 problems that you are trying to address. 3 Secondly, the existing international treaties, 4 copyright treaties, provide huge, broad flexibility for 5 member states to provide limitations to national 6 copyright laws for purposes such as providing access to 7 the blind. Any international norm setting in this area 8 is likely to be counterproductive. I very much agree 9 with Ms. Russell that an international norm is likely 10 not only to set minimum exceptions and limitations, but 11 it’s likely in effect to set maximum. And in an age 12 where technology is moving as fast as it is today, that 13 is certainly not a good idea. Further, a debate on 14 international treaty is likely to divert attention away 15 from much more meaningful activities aimed to address 16 this issue. 17 Finally, I’d like to address the elephant in 18 this room, and that is that for a number of people on 19 this panel, the needs of the blind are not their 20 primary focus. Their primary focus is to use this 21 issue as a tool to advance a much broader agenda to 22 eliminate DRM. And that is not a solution that in the 0172 1 long run is going to advance the interest of blind 2 people; whereas I think there are legitimate issues 3 that blind people have with DRM. Eliminating DRM is 4 not the solution. It is improving digital rights 5 management technologies that can provide greater access 6 to the blind while allowing copyright owners to retain 7 control over their works with respect to the vast 8 majority of people who copyright owners depend upon to 9 create the incentive to produce. Those who are opposed 10 to DRM envision this fantasy world where all 11 copyrighted works are made available in the clear for 12 anyone to use, and miraculously somehow people out of 13 the goodness of their heart are going to compensate 14 copyright owners when they use these works for other 15 than non-infringing purposes. 16 That is a total fantasy world. It doesn’t 17 exist and will not exist, and to try to create this 18 world will absolutely destroy any incentive to create 19 copyrighted works and to distributed copyrighted works 20 -- not only to blind people but to all people. The 21 solution is not to attack DRM; the solution is to 22 improve DRM so it accomplishes our goals of maintaining 0173 1 incentives to create and at the same time allowing 2 blind people and others who legitimately want to use 3 copyrighted works for non-infringing purposes. Thank 4 you. 5 MARIA PALLANTE: Thank you. Peter? 6 PETER CHAPMAN: Protecting intellectual 7 property in the digital era is both an expensive and 8 complex undertaking. Pearson has devoted significant 9 legal and technological resources in an attempt to 10 manage infringement, especially in Asia. We’ve come to 11 realize, though, that this will be an ongoing struggle 12 for us, and the stakes are very high to Pearson, to 13 other education publishers as well as our intended 14 consumers. That is why we believe that reliance on 15 trusted intermediaries is a concern. Do not believe 16 that publishers can always rely on third parties, 17 especially internationally, that may not have the 18 requisite technological skills, financial resources and 19 motivation necessary to control distribution and to 20 prevent global piracy of digital files. 21 Pearson works hard to create superior quality 22 learning materials. Investment required is often in 0174 1 the tens of millions of dollars for any new K-12 2 program imitative. If we cannot reliably count on the 3 legal protection of our intellectual property, that 4 investment is put in jeopardy and could cause 5 publishers like ourselves to rethink future 6 investments, ultimately creating a situation where 7 students could be deprived of our best possible 8 solutions. 9 As we’ve discussed earlier today, we 10 comfortably work with many third parties who create 11 solutions that because of the uniqueness of their 12 offerings and file formats are not subject to 13 widespread piracy. However, we remain wary of the 14 expansion of the definition of eligible populations who 15 may request more mainstream technologies that we are 16 attempting to sell into the market in competition with 17 free offerings. Thank you. 18 MARIA PALLANTE: Thank you. Okay. We 19 obviously have a lot of subtopics to cover, and I think 20 what the Panel would really appreciate is if any or all 21 of you could give us a little more information about 22 how accessible books travel across borders today, what 0175 1 are the business models and any other information that 2 you may have. Carrie? 3 CARRIE RUSSELL: I know we were asked early on 4 by you, Maria, about interlibrary loan -- does 5 interlibrary loan from academic universities or public 6 libraries, schools -- does that serve the need for the 7 international people? No, it doesn’t. Interlibrary 8 loan offices report that they very, very rarely get a 9 request from someone from another nation that’s looking 10 for an accessible copy. In addition to that, they 11 would think that they wouldn’t be able to do that in 12 terms of sending an electronic accessible copy, because 13 that’s usually what the people want. We have nothing 14 in the law under interlibrary loan that gives us the 15 idea that we can send digital copies, so librarians are 16 hesitant to do that. And even if librarians could, 17 they don’t have the technology necessarily to create 18 digital copies on the fly. 19 So the interlibrary loan, existing 20 interlibrary loan arrangements are not at all helpful, 21 and it’s especially a problem for students in higher 22 education because as we’ve heard, their needs are much 0176 1 more varied. You can’t plan for them. There’s not 2 like a set core of materials that people are going to 3 want. The agencies as I understand also, feel very 4 restricted in terms of aiding international requests 5 because they’re limited to citizens of the United 6 States or foreign nationals. So you’re not going to 7 find any way to meet the needs that way at all. 8 I want to thank Fritz for agreeing with me, 9 but it gives me an opportunity to clarify my position a 10 little bit. We do support an international treaty, but 11 we want to keep in mind that WIPO is -- it’s an 12 environment where we’ve fought for many years to keep 13 fair use in our country. We realize that we have the 14 best copyright law; we just want to ensure that that 15 stays the same and that we wouldn’t get anything less 16 from a treaty. We also support what Dr. Kerscher has 17 been talking about and the use of trusted 18 intermediaries. I think that publishers, inventers, 19 they can trust the trusted intermediaries. If you 20 couldn’t, you would have sued them by now. They’ve all 21 been very trustworthy and done a good job in following 22 the copyright law and not been crazy pirates or 0177 1 anything like that. Thank you. 2 MARIA PALLANTE: Thank you. And again, I 3 think although we’re very interested in forthcoming 4 solutions, for this particular question, what happens 5 today? What are all the things, all the steps -- maybe 6 is the way I should put it -- that need to happen for a 7 book to be made accessible, a movie for instance, if 8 you want, today under what business models? Does it 9 happen at all? Are there licensing schemes in place? 10 What can we look to for some experience in this? Dr. 11 Kerscher? 12 GEORGE KERSCHER: Scandinavia is the only 13 example that I know of where they’re moving titles 14 across. Their languages are different, but they can 15 understand each other. And the libraries are trading 16 amongst themselves -- I’ll give you 200 titles, you 17 give me 200 titles -- and their libraries are growing 18 as a result of that. It’s pretty informal. I believe 19 they’re doing this with the full knowledge of the 20 publishers in the region. And that’s the only thing I 21 know of. I know that Sweden has come to Recording for 22 the Blind and Dyslexic and asked to -- licensed to -- 0178 1 we’ll pay you some fees. And we’ve not been able to 2 give those titles to the Swedes. As a result, they’ve 3 had to spend $2 million a year duplicating the same 4 books, the production that we’ve had to do. 5 RNIB has come to RFB&D with a standing offer 6 for higher education materials, and we’ve never been 7 able to fulfill that request. They’ve said, we’ll 8 clear copyright with the publisher. And we’ve said, we 9 still don’t have the right to hand a title over to 10 somebody in another country. There’s nothing that 11 grants us that right. So it’s been almost zero in 12 terms of looking to what has worked. 13 MARIA PALLANTE: Thank you. Michelle? 14 MICHELLE WOODS: Well, one area where we – one 15 is whether there is some experience we can look to but 16 frankly we haven’t heard of it yet, is with respect to 17 public domain works -- is there any model of accessible 18 domain works being made available across borders or 19 internationally that we could look to -- both as a way 20 to kind of assess that there is demand and then also to 21 just look at what the mechanisms are that are being 22 used to transfer those works cross-border. 0179 1 GEORGE KERSCHER: Can I go? 2 MARIA PALLANTE: I have Dr. Kerscher, then 3 followed by Mr. Love. 4 GEORGE KERSCHER: So we have about a half a 5 million titles from Google that are out of copyright. 6 There are still some rights associated with it for the 7 metadata that they’ve used. But they’re making them 8 available, and they’re closing downloads to certain 9 domains, IP domains, based on the copyright law in 10 their country. They’re just starting to do this. The 11 Sony e-Reader has a half million available that you 12 could download. The Sony e-Reader website is not 13 accessible. It uses -- I’m not sure what it uses, but 14 it’s totally not accessible. But I have had people 15 download the titles for me and provided those titles, 16 gave them to me. They’re in the epub format. 17 So that is happening right now. We’ve got the 18 domain, globallibrary.org. We’ve registered that, and 19 we’re going to explore taking books that are in the 20 public domain and putting them into DAISY and making 21 them available, but we haven’t had the financing to do 22 that as of yet, and we’re trying to do that on a 0180 1 voluntary basis. 2 MARIA PALLANTE: Let me follow up with you, 3 since you mentioned the financing word. If you had all 4 the financing in the world, what would be your five- 5 year plan? 6 GEOGE KERSCHER: Thanks for preparing. Okay. 7 I think that standards and technology are fundamental - 8 - we got to nail those down. We got to get the 9 publishers to participate in the standards development 10 instead of having them outside. O’Reilly has just put 11 somebody on our working group for the revision of the 12 standard, but I really want to encourage publishers to 13 participate in that so that the standards are being 14 built, so it’s something that they want to use. 15 I’d love to see the tools and the technology, 16 the training materials, to help modify, to teach 17 publishers about what accessible publishing is all 18 about, how it works, to put standard operating 19 procedures in their publishing processes so it just 20 becomes automatic. I think that rather than all the 21 money in the world, finding a market model that works – 22 and I think that having libraries serving people or 0181 1 blind or print disabled purchase titles from the 2 publishers would sustain the production of those 3 materials. And I’m not saying that the libraries are 4 the only ones buying them, but the libraries would be 5 one of many. I think other libraries, individuals, 6 schools, would start buying accessible content. 7 What we hear from the higher education in this 8 country is, please, just let me buy the accessible 9 version, and they’re never to be found. Schools put a 10 heck of a lot of money into disabled student services 11 to manufacture these titles that they can’t get 12 otherwise. And the titles they’re manufacturing are 13 not top quality. They’re doing the bare minimum job of 14 providing something to the student, but it’s not equal, 15 it’s not a powerful reading experience, and it really 16 should be -- it should be equal. So I think I’d be 17 looking at changing, trying to reinforce the entire 18 infrastructure, helping publishers and the people who 19 know about creating accessible books, to work together, 20 bring them together, and build an ecosystem that’s 21 mutually beneficial and can survive for centuries. 22 MARIA PALLANTE: Thank you very much. That 0182 1 was as solid and impromptu answer on a five-year plan 2 as we could have hoped for. And I have Jamie and 3 Rashmi, but before I do that, Carrie, could you respond 4 to the proposal that maybe libraries could help support 5 an infrastructure and a market by becoming customers of 6 accessible formats? 7 CARRIE RUSSELL: Yes. I’m going to -- it’s 8 one thing when you’re making like a policy decision -- 9 we’d certainly what to participate in that because we 10 want everybody to be able to read and make things 11 easier for students and the public. But putting it 12 into action, it could become another one of those 13 unfunded mandates where we might not be able to be 14 successful at actually doing it. But if we did have 15 the funding, I think libraries are core and they are in 16 every community, and they can serve many, many people 17 that do not even know about the other specialized 18 services that may be available. 19 MARIA PALLANTE: Thank you. Jamie? 20 JAMES LOVE: First, I hope at some point we’re 21 given an opportunity to respond to Fritz’s comment. 22 MARIA PALLANTE: You could do it now if you’d 0183 1 like. 2 JAMES LOVE: He referred several people being 3 here that didn’t really care about access for 4 disabilities having some hidden agenda about DRMs. And 5 if he wants to -- because I think it cast dispersion on 6 -- certainly I felt like it was sort of -- some people 7 might have interpreted that he was directing that in 8 our direction -- maybe he did; maybe he didn’t. And if 9 he has the courtesy to be more specific with respect to 10 our organization, I would encourage him to do so, but 11 it certainly doesn’t really describe our interest in 12 the matter, and it doesn’t even describe our interest 13 in the issue of digital rights management, which I 14 don’t quite understand. 15 The treaty that’s been proposed is designed in 16 such a way that the beneficiaries of the treaty that 17 are using it would have to provide assurances that the 18 works would only be used for the beneficiaries under 19 the treaty. The way that’s done in the United States 20 under the exception, which was described extensively 21 this morning, is for the use of DRM technology. I 22 think DRM technology is used by all of the specialized 0184 1 entities in the United States, and I think it’s just 2 something they have to do in order to fit within the 3 national regime here. 4 So if you’re really -- maybe you’re advocating 5 getting rid of the Chafee Amendment or something like 6 that. But the Chafee Amendment allows people to create 7 work through entities that may become available. Now, 8 we certainly think that everyone who is focused on 9 these issues should not try and tie it into broader 10 agendas about copyright exception limitations, 11 intellectual property rights and other areas, patent 12 agendas or anything else. It should just really be on 13 people that have reading disabilities, period, and it 14 should either go forward or fail on that basis. And I 15 think the larger strategic issue is really the enemy of 16 good policy in this area from our point of view. 17 Now, in terms of a transporter movement of 18 books, Bookshare has indicated that they have licenses, 19 voluntary licenses from publishers for about 4,000 20 works that they provide across borders outside the 21 United States. It’s unfortunate that Bookshare isn’t 22 here because I think they have experience in this area, 0185 1 and as Allan mentioned this morning, they have 2 ambitions to do more. They would like to do more, they 3 said in their written submissions. And it’s our hope 4 that they and other groups would be very involved. 5 Now, in our comments, we reported on a case 6 where a Columbia organization contacted the CNIB in 7 Canada to create a mechanism to share the digital 8 library that both institutions have for places. But it 9 was rejected by the Canadian library officials because 10 they felt that the national exception in Canada didn’t 11 allow them to share with Colombia. If you look at the 12 Judith Sullivan report on the Latin American situation, 13 she found that only nine Spanish-speaking countries 14 have specific laws benefiting visually impaired 15 persons. And if you read Judith Rios’s (ph) survey 16 which was submitted in the comments, you’ll see one of 17 the barriers in developing the transporter shipment has 18 been either the lack completely of any limitation 19 exceptions in many countries -- which is really 20 unfortunate. 21 In some of the countries reported, like number 22 of works in Braille in Nicaragua, 56; number of 0186 1 works -- this is another country up here – very tiny 2 numbers of works in most Latin American countries in 3 some of these particular formats. It’s really 4 completely shocking. Bookshare is -- if a treaty comes 5 into effect that liberalizes the import/export, it 6 would be up to the United States in implementing its 7 obligations under the treaty and other countries to do 8 it in a way that was appropriate. You wouldn’t just I 9 think give a green light to everybody to do everything; 10 you would implement it in such a way that you protected 11 the rights of the publishers as the case right now is. 12 A lot of people have pointed out that there 13 have been no abuses that anybody can point to in the 14 Chafee Amendment. This is an area really -- if you 15 want to find abuses, look at Hollywood. Hollywood, 16 every time they come out with a new movie, it ends up 17 on the Internet before it’s in the theaters -- from 18 their own system. They’re less trustworthy than the 19 people doing works for the blind. I think there’s 20 actually more empirical evidence that they have a 21 harder time managing the security of their copies than 22 the people that are working on Access to the Blind. 0187 1 This is an area where good people that have a proven 2 track record are just trying to basically address an 3 appalling inequity globally. And it won’t happen 4 unless the Obama Administration supports it and leads. 5 MARIA PALLANTER: I have Rashmi and if there’s 6 anybody else in line, and then Allan and then Danny. 7 Okay, Rashmi. You were on the list awhile back. Did 8 you? 9 RASHMI RANGNATH: No. 10 MARIA PALLANTE: Then Allan. 11 ALLAN ADLER: The main reason you’re not 12 hearing much in the way of experience with respect to 13 foreign access to accessible works here in the United 14 States is of course because the Chafee Amendment, like 15 other aspects of copyright law, has no extraterritorial 16 effect. It’s one of the reasons why the good conduct 17 that is reported on the part of companies like 18 Bookshare continues to exist because they’re aware of 19 that. And the only real rationale for an international 20 treaty is essentially to get around the lack of 21 extraterritorial effect. 22 But if you consider that usually international 0188 1 treaties, particularly in this area, in the area of 2 international property -- and we’re not talking about a 3 treaty that’s going to be ending a war or some other 4 violent conflict -- we’re talking about a treaty that 5 is designed to deal with questions of harmonization of 6 conduct and rules for behavior. That usually comes 7 into play when there already is an extensive consensus 8 that leads to the idea that you can in fact achieve a 9 harmonization, because most people are approaching the 10 issue from the same general perspective, about what is 11 considered to be the appropriate rules and the 12 appropriate conduct involved. 13 I think as I’ve suggested to you, in terms of 14 the evolution of the Chafee Amendment over the last 13 15 years, there’s at least a significant part of the 16 community in the United States that believes that what 17 we’ve seen in the evolution of technology, what we’ve 18 seen in the evolution of the study of human behaviors 19 going into the question of what constitutes learning 20 disabilities, is an indication that the Chafee 21 Amendment is no longer the Chafee Amendment as we 22 understood it -- or at least in terms of what people 0189 1 would like to export on an international level, it will 2 not be what we’ve understood the Chafee Amendment to be 3 as it was originally created and the purposes it was 4 supposed to serve. 5 So again, I don’t think that there is a 6 consensus to be able to sort of enshrine in an 7 international instrument that indicates in fact that 8 people have reached this core level of agreement. We 9 see this problem for example with respect to the issue 10 of textbooks. Textbooks in the United States are 11 published regularly to a chorus of criticism that they 12 cost too much. So then when textbook publishers also 13 engage in the export of international additions of 14 their textbooks, which are priced to the markets in 15 which they expect to do business, we hear from the 16 American consumer that somehow the American consumer, 17 the student is being gouged at home in order to serve 18 these interests abroad, because they simply don’t 19 understand the idea of building international markets. 20 If you’re going to be able to deal with the 21 issue of accessibility in the same way, you’re also 22 going to have to take into account different levels of 0190 1 infrastructure, different levels of capability for 2 essentially absorbing this kind of technology and these 3 kinds of models, including the models of trusted 4 intermediaries abroad, under circumstances that raise a 5 good many questions as to whether or not that’s a 6 reasonable assumption to make. 7 I think one of the problems that we’re having 8 here in talking about internationalizing standards is 9 that we haven’t even reached an agreement on national 10 standards in this area. And the irony of course, would 11 be that generally speaking, in order to harmonize these 12 standards on an international level, we would probably 13 reduce rather than raise the standards that already 14 apply in the United States in applying them 15 internationally. That’s something that I think 16 generally would be viewed as unacceptable. Certainly 17 within the community that I represent, it’s not the 18 best way to try to address this problem abroad. 19 MARIA PALLANTE: Thank you. I have Danny, 20 George and then Rashmi -- but Allan, I have a follow-up 21 for you. 22 ALLAN ADLER: Sure. 0191 1 MARIA PALLANTE: One way we have been thinking 2 about this as a Panel is that there are kind of two 3 sets of materials that the publishers put out into the 4 world. One are the works that are already being 5 distributed worldwide, or regionally to the general 6 public, and then the other set of materials are those 7 that maybe aren’t distributed very far to begin with. 8 So looking at the first set, where you’re already 9 distributing in another country, could you speak to us 10 a little bit about how the exceptions in other 11 countries might work? For example, a trade book that’s 12 published in the U.S. that’s then licensed to say a UK 13 publisher, if there’s a blind person in the UK, how 14 does that work? Do they get access or don’t they, and 15 if so, how? 16 ALLAN ADLER: Well, generally speaking, when 17 you talk -- that’s another difference among the 18 sectoral areas of publishing. Trade publishers, 19 generally speaking, don’t hold copyright in their work. 20 What they acquire from the author who creates the work 21 who originally holds copyright and usually continues to 22 hold it, is whatever exclusive license they need in 0192 1 order to be able to serve that part of the global 2 market that they choose to serve. So in the United 3 States, the author of a book typically will give to the 4 publisher the right to publish the print version in the 5 English language in North America. It’s a geographic 6 territorial limitation. Usually the rights -- 7 especially if they involve another language -- will go 8 to a publisher in that other country where that 9 language is spoken. And so the American publisher 10 doesn’t really deal with that issue at all. 11 To the extent that you’re talking about the 12 question of providing for accessibility, you gave the 13 example of the UK, so we’d be talking about a common 14 language. But I think the question would be, what’s 15 the nature of the license that was acquired by the UK 16 publisher with respect to that particular work? I 17 would suspect that it probably -- well, indeed almost 18 certainly -- would be the same thing; not copyright, 19 but a very specific exclusive license in order to be 20 able to publish that work within the United Kingdom -- 21 or perhaps within the Commonwealth nations. 22 MARIA PALLANTE: So there’s a sublicense to 0193 1 make the work available to the general public, but is 2 there any way for RNINB or Bookshare or someone else to 3 make that work available, in accessible formats? It’s 4 to a place where you have already published it in 5 general. 6 ALLAN ADLER: To someone outside the country? 7 MARIA PALLANTE: Yes. 8 ALLAN ADLER: Not that I’m aware of. 9 MARIA PALLANTE: Okay. Let’s get back to our 10 list -- I’m sorry. Danny and then George and then 11 Rashmi. 12 DANNY O’BRIEN: I’m going to do the classic 13 moment in a long list like this of answer a question 14 that was many, many minutes ago, which was to discuss 15 the nature of the export of public domain materials. 16 To go back to my original point about the possibility 17 of communal and collective effort, one of the largest 18 repositories of accessible public domain works is 19 Project Guttenberg. I don’t know how many works that 20 they’ve worked together to produce now, but I do know 21 that I have a DVD of them. And if anybody knows the 22 story of the nature of DVDs, that’s an awful lot of 0194 1 ASCII. 2 I also know that one of the issues that limits 3 the export of that content -- and there really aren’t 4 that many, because once it seems to be in the public 5 domain and once it’s in a format like ASCII, it’s 6 simply a matter of putting it up on a website and it 7 propagates. But I do know that one of the things that 8 pushed the Eldrick (ph) case was the subset of public 9 domain -- materials that are in public domain in the 10 United States but not necessarily of jurisdictions. 11 So I think this just goes to Carrie’s point, 12 which is that I think that there can be dangers that 13 one ends up creating maximums or minimums from maximums 14 in these situations. But that’s something that exists 15 prior to the treaty. The problem with exporting public 16 domain works is that there’s no consistency about the 17 nature of those works and the legality in other areas. 18 And because the default, when you’re distributing 19 content online, is to distribute to the world, if 20 you’re in a situation where you have to make a decision 21 to block as we’ve heard Google has to block certain 22 books, that actually becomes a cost. So the 0195 1 inconsistency between laws ends up being an argument 2 for not producing that material at all. 3 I don’t want to spend too much time on the DRM 4 issue that Fritz brought up, largely because I think 5 that rather -- it’s very hard to discuss it without 6 sounding like that is the particular obsession that we 7 have, and I don’t think that’s true. I mean, the one 8 thing that I would point out is as Allan mentioned, is 9 that these days it’s a given commercial understanding 10 that one doesn’t need DRM to have a commercial market. 11 The music industry has switched to a no-DRM model over 12 the last few months, and as Allan mentioned himself, 13 audio books appear to be switching to that same 14 context. And George Kerscher mentioned that he sees 15 markets moving towards a DRM free content. 16 So if we are discussing DRM, we should discuss 17 it in the context if there are being commercial markets 18 and non-commercial markets where DRM is not important. 19 And I think one of the things we should say here is 20 that if we are employing DRM, if we are requiring DRM 21 as a nature of these treaties in this area, I think it 22 behooves us to try and find evidence one way or the 0196 1 other that this is a risk. And there are ways of doing 2 that. I know a number of people have suggested 3 fingerprinting or tracking in some way. We already 4 have trusted intermediaries which we don’t have in 5 other environments who have an obligation to track and 6 check these things. So this is a good environment to 7 see whether this is really a case, a problem -- but we 8 know already that it is a problem in providing viewable 9 formats. 10 Finally, just a as a general point, I do think 11 we should be careful that we don’t perfect the enemy of 12 the good here. I think that there is clearly a demand 13 for content that is commercially expensive to produce 14 and would be desirable in this area. But what we’re 15 mainly dealing with here with, I think, is a profound 16 market failure in the general availability of these 17 works. IF it really costs us so much money to produce 18 50 works at a high standard, then perhaps we should 19 consider a wider attempt as Scott said, to just do it, 20 just produce content that we can convert into the 21 simplest formats and see if that can lead commercial 22 production as the demand and the distribution systems 0197 1 begin to build up to cope with that very simple 2 content. 3 MARIA PALLANTE: Thank you. I know Michelle 4 has a follow-up question for you, but let me just get 5 my list straight. Hold on, Allan. I’ve got George, 6 Rashmi, Allan -- anybody else want to get on the list 7 here? Jamie? Okay, Michelle? 8 MICHELLE WOODS: Thanks. I just wanted to 9 follow up on the Project Gutenberg point and ask if you 10 have any information at all about how much these 11 accessible formats actually are used for the benefit of 12 blind or other persons with disabilities. Is there any 13 information out there that can kind of demonstrate to 14 us interest in that, or any way we could measure that? 15 DANNY O’BRIEN: You know, one of the ways that 16 we could do this going forward -- and I don’t have Net 17 access, so I can’t see -- I know that one of the things 18 that’s a natural result of Project Gutenberg is that 19 these formats are converted into standard eBook 20 formats. And perhaps one of the ways we could do this, 21 and perhaps this already happens, is to work with 22 Project Gutenberg to put the DAISY-formatted works 0198 1 available as well and basically do a sample in that 2 way; like point people to Project Gutenberg and see how 3 that patent emerges. I’m sure that’s something they’d 4 be very happy to coordinate with -- although I don’t 5 speak for them, I should say. 6 MARIA PALLANTE: George? 7 GEORGE KERSCHER: Trust intermediaries are the 8 caretakers of copyright. This is a little bit of an 9 aside, but I’m the guy who told Michael Hart he 10 couldn’t scan and convert everything, that it was 11 illegal. And I had to explain him the copyright law. 12 That was 1991. 13 MARIA PALLANTE: Thank you for doing that. 14 GEORGE KERSCHER: And he was very upset with 15 me. But Allan was talking about not having consensus. 16 Okay. So where do we have consensus? Well, we’ve got 17 RFB&D, National Library Service, Bookshare, all using 18 the same format for the distribution of content. We’ve 19 got the DAISY XML and the navigation model being 20 incorporated into the eBook standard, and the DAISY 21 Consortium has been announced as call for comments 22 becoming the maintenance body for the epub standard. 0199 1 We’ve got Google, who is distributing in the epub 2 format, and we’ve got the publishers distributing epub 3 to their distributors. 4 So that’s a lot of agreement. Then we’ve got 5 all the libraries around the world who are providing 6 legally material; they’re all using the DAISY standard 7 in the same format. We have started a Global Library 8 Project where we’re investigating all the different 9 issues associated with the legal sharing and 10 distribution of content across national boundaries. 11 We’re looking at the federated search issues, we’re 12 looking at the copyright issues, the business models, 13 how we can involve publishers in this, and what are the 14 technological aspect safeguards for this. 15 So there’s huge consensus, and it may just be 16 in the United States that there’s this jostling for and 17 competition -- everybody wants to own the whole market. 18 But there is huge consensus worldwide moving forward 19 toward a copyright exception that would work. 20 MARIA PALLANTE: Thank you. Actually, would 21 you explain to us a little more about the Global 22 Library Project? 0200 1 GEORGE KERSCHER: So it’s jointly -- we’ve got 2 four people from IFLA Section for the Blind in the new 3 name, and four from the DAISY Board. And that’s the 4 oversight group that are running this project. Then 5 it’s been divided up into four different working groups 6 -- and we’re just in the first year of this, so we’re 7 just setting up our strategies in how we’re going to 8 work. But one of the big ones is what is the business 9 models that are going to be effective and working? And 10 so that’s just getting going. 11 We’ve been inviting publishers to join the 12 DAISY Consortium. It’s $1,000 a year to be part of 13 what we’re doing and contribute to the standards 14 development. But we’ve not seen a big move toward 15 that. It’s been more in the library and the education 16 sector where we’ve seen people joining, but it’s an 17 open door policy. 18 MARIA PALLANTE: And the goal, is it to serve 19 the general public? The library project would -- 20 GEORGE KERSCHER: The Global Library is 21 looking at people with disabilities throughout the 22 world, so we’re looking at how that would work to serve 0201 1 people with disability. 2 One of the issues is going to be the 3 identification of content in particular formats that 4 work for people with disabilities, because we know that 5 some formats that are going to be made commercially 6 available will work for some disability groups but not 7 for all. A deaf-blind person is not going to be able 8 to use an audio book, but a deaf-blind person would be 9 able to use an eBook or full text and full audio 10 multimedia book. So these are some of the issues that 11 would be addressed. Also, if the book does have text, 12 then it could be used with refreshable Braille. 13 So there’s a lot of different issues in 14 serving people with disabilities that are not normally 15 considered in the design of mainstream systems. 16 MICHELLE WOODS: Just one follow-up on that, 17 and I’m wondering whether the Global Library Project, 18 or if not that project perhaps some other effort that 19 you’re aware of, has an initiative just -- and it 20 sounded like there might be something like this -- just 21 to compile information, a database, an extensive list, 22 of some type of all of the accessible works that are 0202 1 out there available at this time in different formats 2 that might be useful to people with various different 3 types of needs and capabilities. Is there any type of 4 international effort to compile that information? 5 GEORGE KERSCHER: Analysis of the different 6 formats that are in use today and how useful they are? 7 MICHELLE WOODS: Well, not just the formats 8 but then what works are available, so somebody could 9 look up and say, well, actually, in Canada this work is 10 available. And then one could look into, is there the 11 ability to license or other ways to make it available. 12 But just in other words, a centralized database or 13 system for finding out what accessible works in various 14 formats are available? 15 GEORGE KERSCHER: That sounds like a federated 16 search to me, that that would be the kind of thing that 17 would identify what the formats are in, what are the 18 jurisdictions it could be made available in, if there 19 are interlibrary loan fees or exchange fees or 20 something, what are they, how can it be done. It would 21 be the way to find the information about what’s 22 available. 0203 1 MICHELLE WOODS: And is that available now? 2 GEORGE KERSCHER: No. Google has joined the 3 DAISY Consortium and they know a little bit about 4 searching. We hope that they could help us. But all 5 of this is work that’s being done with literally no 6 funding, and we get together when we can at other 7 conferences. So you tack on a day here, day there to 8 get things moving along. And it’s all part of the 9 night job that people have. So it’s voluntary work 10 groups associated with activities of the DAISY 11 Consortium. 12 MARIA PALLANTE: Okay. We have a list of 13 people, but Michael, you had a follow-up? 14 MICHAEL SHAPIRO: Just to put a finer point on 15 Michelle’s fine question. When reading through the 16 comments, I was looking obviously for what might be 17 called actionable policy items. And one of the 18 commentators mentioned a kind of very diffused concept 19 of a national registry of accessible works -- and I 20 think Michelle might have had that in mind. 21 But as I kind of browsed deeper and deeper 22 into the comments, I thought that we really had kind of 0204 1 a head start on this. Even today we learned that RFB&D 2 Library, I think there’s 50,000 digitally recorded 3 items; the American Printing House for the Blind, I 4 think we earlier heard, 196,000 books; Bookshare -- I 5 missed that. Later on, we heard about the Access Text 6 Network that is about to be launched -- could have 7 300,000 titles. 8 So it sounds like at least one of the steps in 9 this process – and this is kind of a many element 10 process to enhance accessibility -- is to begin to 11 build the kind of database here in the United States 12 that would allow us at least to locate accessible 13 materials. So if you could pull that out a little bit 14 more for us, that would be great. 15 GEORGE KERSCHER: The Louis database I think 16 was the reference -- when you said 196,000 titles? 17 MICHAEL SHAPIRO: Yes. Not right. 18 GEORGE KERSCHER: That doesn’t exist, but the 19 database – 20 MICHAEL SHAPIRO: Clarification on that. 21 GEORGE KERSCHER: So RFB&D uploads our list to 22 the Louis database, and Library -- 0205 1 PETER CHAPMAN: (Off mic). We have 170 2 agencies that (indiscernible: 1:17:44). 3 GEORGE KERSCHER: So it’s in the United 4 States, the central place to go to, to find out who’s 5 got what. 6 PETER CHAPMAN: It’s not international. 7 GEORGE KERSCHER: Right. 8 MICHELLE WOODS: But am I correct in 9 understanding that there are some limitations to what - 10 - that there could be accessible works that would not 11 be loaded into that database, because it’s actually 12 pretty much limited to works that are available under 13 the Chafee Amendment, or is that an incorrect 14 understanding? 15 GARY MUDD: You know, I can’t be sure about 16 that. I think that under the Chafee Amendment, yes. 17 But a lot of times it’s state-driven. Like I mentioned 18 earlier, the State of Texas, they have titles that they 19 make available for the State of Texas by the State of 20 Texas, and they stay in the State of Texas. But the 21 ones that make up the 196,000 titles from the 170 22 agencies are all either audio, large print, or in 0206 1 Braille. 2 GEORGE KERSCHER: And commercial titles are 3 not -- 4 GARY MUDD: Not trade books, generally not. 5 GEORGE KERSCHER: Yeah, but not – commercial 6 titles that are accessible are not included. 7 GARY MUDD: No. 8 GEORGE KERSCHER: But there aren’t many, so 9 there wouldn’t -- but it would be good to add that. 10 And I’m probably confused about who uploads whose 11 information to this database. 12 MICHAEL SHAPIRO: Well, if there’s any way in 13 follow on comments to begin to clarify this, we’d be 14 most appreciative. 15 GEORGE KERSCHER: Can I speak for a second? 16 MICHAEL SHAPIRO: Sure. 17 GEROGE KERSCHER: Can I bring my colleague, 18 Tom, up for a second? 19 MARIA PALLANTE: Actually, is it on this 20 point? 21 GEORGE KERSCHER: Tom has all the information. 22 MARIA PALLANTE: Okay. Then we have Rashmi, 0207 1 Allan and Jamie to follow. 2 THOMAS STARBRANCH: The Louis database, to my 3 knowledge, includes things that are not there just 4 because of the Chafee Amendment. So some publishers 5 use that as their repository to distribute works to 6 people with reading disabilities. And we often give 7 permission to release those materials as well. 8 MICHAEL SHAPIRO: Thank you. 9 MARIA PALLANTE: Rashmi? 10 RASHMI RANGNATH: I wanted to address the 11 point of harmonization and how back-up consensus will 12 mean that an international treaty cannot be negotiated. 13 Well, a lot of international copyright treaties did not 14 represent consensus among countries. The TRIPS did 15 not. There was a TRIPS Council that monitored whether 16 countries had actually amended their laws to come into 17 compliance with TRIPS, and then there was flexibilities 18 that were given to developing countries, they were 19 given time to come into compliance with TRIPS. 20 The point I’m trying to make is that in this 21 area, the need for harmonization is to ensure that 22 copies can be exported and imported. The reason that 0208 1 might not be happening is because as Allan mentioned, 2 the territorial nature of copyright law, but not 3 because there is no desire or there is no need to 4 export accessible copies. It is not against the 5 purpose of copyright law to make these copies 6 accessible, and having a treaty that will guide 7 countries and develop a consensus about how copies can 8 move across borders will help in the movement to cross 9 borders. That’s the point. 10 MARIA PALLANTE: Rashmi, I have a follow-up 11 for you. For countries that don’t have an exception 12 currently, don’t have our experience or our history in 13 working through this issue, and having an exception 14 bubble up from the ground up the way they certainly do 15 in this country, are there other ways to provide 16 guidance? 17 RASHMI RANGNATH: Other than a treaty? 18 MARIA PALLANTE: Yes. 19 RASHMI RANGNATH: I guess that desire to have 20 an exception should come from within, and then they 21 would follow models that have developed in other 22 countries -- depending on how much resources they have 0209 1 to be able to develop their own models. That should 2 not prevent countries who are at a stage where they 3 really want to exchange copies to be able to do that. 4 I mean, you saw a number of case studies in the 5 Sullivan report where different countries and 6 specialized entities in different countries have talked 7 about how they cannot get accessible copies from other 8 countries, but they really do want to get copies. And 9 these are agencies who are the trusted intermediaries 10 that everyone is talking about. A treaty facilitating 11 such movement would be important for them. 12 MARIA PALLANTE: Okay. I just want to make 13 sure I understand, because I think I just heard two 14 separate thoughts. One is that to the extent another 15 country has an exception that’s similar or somewhat 16 similar to the Chafee Amendment, there’s an immediate 17 need and there should be some facilitation of moving 18 accessible books across borders -- but for those 19 countries that are not remotely at that stage yet. 20 RASHMI RANGNATH: Right. 21 MARIA PALLANTE: What we’re really trying to 22 get at here I think as the Government Panel, is what 0210 1 role is there for us, for WIPO, internationally, 2 private sector, public-private partnerships, to provide 3 that kind of guidance that you identified? 4 RASHMI RANGNATH: I am not sure what can be 5 done. I think that a treaty will help them fashion an 6 amendment if they want to have an amendment in their 7 domestic law. Beyond that, I’m not sure how I can 8 answer your question. 9 MARIA PALLANTE: Let’s go to Allan, and then 10 Jamie and then to Michael. 11 ALLAN ADLER: Yeah. I just wanted to comment 12 on two things, but before I just forget it, to mention, 13 in connection with your discussion about a database, it 14 is hoped that fairly soon -- and Gary can correct me if 15 I’m wrong about this -- but it’s hoped that fairly soon 16 the NIMAC and Louis databases will be searched in 17 coordination together, which will greatly expand the 18 amount of material that ultimately will be contained as 19 a result of -- it’s now already capable. 20 I just wanted to go back to two things. One 21 was Danny’s comment about DRM. I think he gave a more 22 optimistic translation of my comments than I offered 0211 1 myself. What I was trying to say was that in markets 2 like the audio book, where people have found evidence, 3 market-based evidence, that they don’t seem to face a 4 problem in the absence of DRM, that’s all well and 5 good. There are obviously other markets where that 6 just hasn’t proven to be the case. And there are other 7 business models -- for example, looking at a different 8 side of the publishing community that deals with 9 journals -- where the ability to go online was 10 predicated on the use of DRM, and the whole system 11 continues to operate based upon the ability to use DRM. 12 If you didn’t use DRM, you couldn’t have online 13 subscriptions to journals. 14 But then my comment about George’s view, when 15 we’re talking about consensus. George is a giant in 16 the world of standards, and it doesn’t surprise me that 17 he tends to see things through that prism of standards. 18 But standards isn’t the only issue that we’re dealing 19 with when we talk about the need for consensus and its 20 current absence. The best example I can give you of 21 that is is that again, the IDEA Amendments in 2004 were 22 enacted after four years of planning by a very broad 0212 1 coalition that included in addition to the AAP, the 2 NFB, AFB and all of the other various well-known 3 advocacy groups for the disabilities community. 4 And one of the two pillars of that concept 5 that eventually became the IDEA Amendments was the idea 6 of eliminating the patchwork quilt of file format 7 standards by the introduction of a uniform national 8 standard -- the IMAS. The fact of the matter is that 9 that was going to require preemption of contradictory 10 state or local requirements of formats. But given the 11 views of the State of Texas, there was no preemption. 12 And the fact is that today, since the enactment of the 13 IDEA Amendments of 2004 -- which is only five years 14 later -- my school division reports to me that we have 15 seen over 150 separate legislative or contract or 16 regulatory proposals on the state level, continuing to 17 propose different formats to be required of publishers 18 for books in those jurisdictions. 19 So what’s happening here is when you ask the 20 question, Maria, about what’s the role for government, 21 for the U.S. government in this area, it’s fine for the 22 U.S. government to be looking outward internationally 0213 1 and seeing whether or not it’s possible to extrapolate 2 some of our experience here and some of the value of 3 our experience here and see what it can do there. But 4 look back, okay. We haven’t changed the fact that the 5 states and local governments are continuing to 6 legislate, continuing to issue their own contradictory 7 requirements in this area. And if you think an 8 international treaty is going to mean anything to the 9 states or local governments in the United States, it 10 simply won’t. 11 MARIA PALLANTE: Jamie? 12 JAMES LOVE: Thank you. On this issue of DRM, 13 in our point of view there’s DRM and there’s DRM. And 14 I think it’s unfortunate that it just kind of gets all 15 compressed into a single term. There’s a lot of things 16 that people accept very much, like watching Netflix and 17 paying for it and having to have a password and abiding 18 by the rules -- or an online thing, like Westlaw or 19 something like that, paying the money to have it and 20 having a password-type thing. 21 People might also get kind of upset, though, 22 if they can’t do a cut-and-paste to the text or they 0214 1 can’t do other things. And a lot of these are fights 2 over what rights that consumers traditionally had in 3 paper products. They were able to make private copies, 4 they were able to sort of use things in their research 5 and clip and annotate things, and they’re fighting, and 6 there’s some – so there’s a range of battles about how 7 DRM, where it’s appropriate or not appropriate and what 8 kinds of DRM really, really annoy people as opposed to 9 things that they think are less, or sort of don’t cross 10 the line -- and highly context specific. 11 So I just wanted to get that out on the table, 12 because I think the authors have a point. I think that 13 livelihoods really are at stake. I think that rampant 14 privacy in the digital world is a legitimate problem, 15 and I don’t think consumers have done enough to speak 16 up on behalf of creative communities and basically 17 defend the legitimate concerns they have. I agree with 18 what Peter Weiner (ph) said in Slashdot last week about 19 it last week. He’s an author and a friend of mine, and 20 I think he was absolutely right that things are really 21 -- there’s a problem there. And I don’t really want to 22 minimize it at all, because I think it is legitimate. 0215 1 And I don’t think this is really, should be seen as an 2 attack on that. And I think to the extent that these 3 trust things are important, I think that everyone is 4 ready to go on that front. 5 Now, in terms of the treaty thing, oh, well, 6 can we do a treaty for people who are disabled or 7 blind, despite massive evidence of an absolute book 8 famine -- I mean, just an absolutely appalling human 9 rights violation in developing countries, and even 10 across the border -- even if you look at the situation 11 in Canada or something like that, let alone go to Kenya 12 or Bolivia or some places like that. Can we do it? 13 Well, we seem to be able to do treaties. Public 14 Knowledge mentioned the TRIPS agreement. There was the 15 ’96 treaties which were done in about two years -- the 16 WTC and WBT, when they sort of basically -- the 17 decision was really ready to go ahead. They’ve been 18 talking about this problem in import-export for about 19 20 years at WIPO and they’ve gotten nowhere so far. 20 The Broadcast Treaty, MPA was all over the 21 Broadcast Treaty, even though the United States had 22 never signed the Rome Convention. They wanted us to 0216 1 sign a treaty to bring a set of rights that they 2 couldn’t get through to U.S. Congress, but they went 3 basically to WIPO to try and promote a set of economic 4 rights that didn’t exist in this country. ACTA is on a 5 fast track. It’s a secret proceeding. There’s 6 basically no real transparency to the actual 7 negotiating text. 8 So when it comes to sort of can-do attitude 9 about things, here you’ve got a thing where consumers 10 are involved and people are disabled. And I’d like to 11 see some of that can-do attitude that you can solve 12 problems, that every time right owners basically speak 13 up and call politicians, they seem to get a lot of 14 attention. And we’d like to see the same amount of 15 priority and attention in this particular area. Now, 16 the reality is if you permit this norm setting at WIPO 17 and you permit import and export, the bottom line is, 18 Americans will get access to foreigners, and foreigners 19 will get access to U.S. work. If you don’t do the 20 treaty, Americans will not get access to foreign works 21 and foreigners will not get access to U.S. work. 22 That’s what this is about. It’s about whether or not 0217 1 these accessible copies -- and it’s not just about 2 digital text. And the kind of things that a DAISY 3 format does requires a lot of marking up of the text, 4 identifying chapters and headings and things that allow 5 navigation. And the way that a person can see can use 6 a document. And people have mentioned how expensive it 7 is to make a lot of these Braille copies. This is 8 really about expanding access or not expanding access, 9 and if the Obama Administration doesn’t lead, it’s not 10 going to happen. 11 Now, I know that Brazil has now announced that 12 they’re going to table the World Blind Union text at 13 the end of this month and the SSCCR. And they’ve 14 appealed to a number of countries and they’ve written a 15 lot of countries to support them in doing so, and they 16 will have co-sponsors in that endeavor that will take 17 place very soon. So the WBU texts will become the 18 Brazil texts or the Brasilia text plus whoever joins 19 them. It should be the Brazil-United States text. 20 That’s what it should be. It should not be a fight 21 between developing countries and Americans on this 22 thing. The United States should align itself with 0218 1 those countries and it should go in together into that 2 proceeding and get rid of this North-South debate on 3 this issue and really make this a common cause to 4 basically address a really important human rights 5 problem. 6 MARIA PALLANTE: Thank you, Jamie. Fritz, 7 you’re next, but we are actually going to call a break. 8 It’s 4 o’clock. We’ve been sitting for 90 minutes. So 9 if everybody could be back at 4:15 and Fritz, you’ll be 10 first when we return. 11 MARIA PALLANTE: Okay. Thank you so much -- 12 on the home stretch. I know it’s been a very long day, 13 and we just wanted to reiterate how much we appreciate 14 everything that we have been told and everything that 15 you’ve taken time to explain to us today. And with 16 that, Fritz, you’re up. 17 FRITZ ATTAWAY: Just a very quick point on 18 harmonization. It should be recognized that there is a 19 degree of harmonization in the Berne Convention, and 20 that is member states can do basically whatever they 21 want in terms of providing exceptions and limitations, 22 so long as they meet the three-part test. So there’s 0219 1 tremendous flexibility already in the Berne Convention. 2 And then the second point I want to make is 3 that if international harmonization to facilitate 4 access to copyrighted works by the blind is desirable, 5 I think that the discussion I’ve heard today, 6 particularly from those who are actually engaged in 7 trying to achieve this objective, suggests that WIPO is 8 not the right forum. Because even to the extent that 9 copyright is an issue, it is certainly only one among 10 many that faced the blind in achieving this goal. 11 There are technological issues, economic issues, there 12 are a number of issues far outside the scope of WIPO 13 that have to be addressed in order to make a solution 14 meaningful. 15 So if it is decided that international 16 harmonization is desirable, I would suggest that a 17 different forum be found where all of the issues 18 involved in this problem can be addressed, not just 19 copyright, which is at best only one of many and in 20 many instances, certainly with respect to audio-visual 21 works, a tiny issue. 22 MARIA PALLANTE: Michael, do you want to 0220 1 follow up on that? 2 MICHAEL SHAPIRO: Sure. Thank you, Fritz, and 3 I at least wanted to pick up on part of your comment, 4 because even before the break I felt the kind of 5 inherent need to clarify a bit this international 6 framework for exceptions and limitations. And Fritz 7 gave me the segway. Of course, under the Berne 8 Convention, as we all know, there is long-standing 9 framework under which countries may tailor their 10 exceptions and limitations to advance national, 11 cultural and economic information policymaking. 12 Indeed, the very exceptions that we operate under the 13 U.S. Copyright Code and the Fair Use Exception and even 14 our Section 121 are reflections of the very latitude 15 that is given countries to craft these exceptions to 16 meet their own policies. 17 So I do want to make that clear, and thank 18 you, Fritz, for introducing that point. But I wanted 19 to revert back to a point that Maria made earlier, and 20 it might have kind of glossed a little bit into the 21 background and maybe didn’t elicit a full response. And 22 I think it’s an important one, and that is -- and this 0221 1 is notwithstanding Fritz’s point -- what in our 2 discussions for example in the Standing Committee might 3 we do to promote the kinds of exceptions and 4 limitations, maybe even short of a treaty, that would 5 begin to facilitate these cross border movements. 6 I’m thinking in particular that, as you 7 all know, between peaks of norm setting, from time to 8 time WIPO has been very helpful in periods of guided 9 development where technical assistance and legislative 10 assistance and discussion do provide that kind of give 11 and take with countries. And I guess another element 12 of the question is, we’d be very curious to know about 13 specific instances of impediments in the national 14 policymaking process, where countries are not taking 15 advantage of the full range of exceptions and 16 limitations that the Berne Convention framework already 17 gives them. So that’s my question to you all. Anybody 18 want a bite of what could be done. 19 MARIA PALLANTE: Michael, if I could just 20 interject a minute. We have two people who have to 21 catch flights, so Scott, I had promised a couple of 22 minutes to give some remarks as he runs to catch his 0222 1 flight, and Peter, I didn’t know if you had to leave 2 right now or not -- you’re good? 3 Scott, the floor is yours for a few minutes. 4 SCOTT LABARRE: Well, Michael, I don’t have an 5 answer to your last question, so I’ll duck out on that. 6 But I have a few things in sort of conclusions. First 7 of all, I appreciate the opportunity to be here on 8 behalf of the National Federation of the Blind and your 9 willingness to take these comments now. I do need to 10 get back to Denver for a meeting tomorrow morning. 11 With respect to a lot of the arguments that 12 Allan has been making today and others of a similar 13 mind, respectfully, a lot of them seem to be kind of 14 slippery slope arguments, talking about possible 15 nightmare situations that have not really occurred, 16 even though under the current system, copyright 17 infringement certainly could have been going on, and 18 could have been going on in a good way. Secondly, with 19 respect to all the discussions regarding IMAS and NIMAC 20 and all the problems that have sort of arisen, 21 certainly there are some. But let us keep in mind that 22 that has not really been in effect except for the last 0223 1 couple of years in terms of real implementation. Are 2 there budgets to be worked out? Yes, but does that 3 mean it’s not worth pursuing or doing or fixing and 4 using as a model? Going into the future, I don’t think 5 so. 6 And finally, the idea about whether there are 7 other alternative ways other than a treaty to address 8 some of these things, I would think so. I would think 9 there could be all kinds of bilateral, multilateral, 10 trilateral agreements, sharing of experiences to start 11 dealing with the issues. But I really do urge our 12 country to be a leader in this and to set the framework 13 for a treaty and make it happen. Because it has to 14 happen; we just got to go do it. So that’s it. 15 MARIA PALLANTE: Okay. Thank you very much. 16 Safe flight back. 17 SCOTT LABARRE: Thank you. 18 MARIA PALLANTE: And back to Michael’s 19 eloquent question. Keith, you were on the list. Did 20 you want to take that question? 21 KEITH KUPFERSCHMID: I don’t think I have an 22 answer for that very difficult question myself. I 0224 1 wanted to address some things that I think honestly 2 Fritz beat me to the punch a little bit about. Under 3 the Berne Convention and the TRIPS Agreement there is 4 this three-part test, and under that test that’s where 5 we have the Chafee Amendment, 121 -- Section 121. And 6 there’s really nothing as far as I can see, preventing 7 any other country, any other region, from adopting that 8 same type of approach. I don’t know if the folks 9 around this table or other folks have been sort of 10 pushing that approach internationally – and to sort of 11 clarify FA’s or my comments earlier -- with regard to 12 international treaty or harmonization, I’m not 13 necessarily opposed to it; I just don’t see what it 14 gets us. I think there’s so many other issues on the 15 table. And as I said before, as Fritz said earlier, 16 copyright is just one of those issues, and there are 17 many, many other issues and there’s many other things 18 that folks around this table and other folks here, who 19 couldn’t be here, could be doing. 20 And let me just give one example of that -- at 21 least for the industry I represent, the software and 22 digital content industry -- and maybe this somewhat 0225 1 gets to Michael’s question a little bit. Many of those 2 files are actually written in a few mostly open-source 3 software programming language, like Java, Perl and 4 Ruby. But those open source programs generally do not 5 include accessibility in their design suite. And it’s 6 possible certainly those folks in the room, and 7 especially those supporting a treaty, one of the things 8 we could be doing could be helping design features in 9 open source code that programmers, designers, can 10 incorporate into their software programs. Since they 11 use these open source programming languages, why not 12 create accessibility features or functionality that can 13 make their products accessible. And that’s a sort of 14 one example that has honestly nothing to do with the 15 treaty that certainly could be done. I think there are 16 many things like that, if we all sat around the table, 17 came up with al list of things that all the interested 18 stakeholders here could be doing a little bit more. 19 MARIA PALLANTE: Thank you, Keith. I have a 20 question about right of first publication and best 21 practices. So earlier Rashmi had said that at least to 22 the extent where there’s another country that has an 0226 1 exception in place, like the United States with respect 2 to sharing accessible books across borders, those 3 exceptions should be able to speak to each other -- if 4 I could paraphrase. And I guess the question is, if a 5 publisher is already making work available, they’ve 6 already selected to publish a work in a foreign country 7 other than the United States, who’s the right party to 8 make the work available? And I’ll ask both the 9 publishers and anybody else who wants to jump in to 10 respond to this, from both sides of the coin. Starting 11 with Allan. Jamie, you’re on the list. Anybody else 12 want to jump in, if you could raise your hand. George? 13 Keith? 14 ALLAN ADLER: Of course, that’s going to 15 depend in some cases at least on specific circumstances 16 of the legal framework within a given country. And the 17 best example I can give you is China. At the moment, 18 U.S. publishers are not fully free to publish works in 19 China unless they essentially have a Chinese partner 20 for purposes of publication. That’s part of the price 21 you pay for market access into that particular market. 22 There are a number of other countries -- 0227 1 MARIA PALLANTE: Allan, just for ease of the 2 example, though, if we could stick to say the UK or 3 Canada. Let’s keep it close. 4 ALLAN ADLER: I guess I would say if it 5 were -- you would either think that if you’re talking 6 about trade publishing, where as I said, what is given 7 is an exclusive license. So you’re not talking about 8 the copyright owner being the U.S. publisher. In that 9 instance, I don’t know that the U.S. publisher would 10 necessarily have the right to authorize the accessible 11 version of the work to be published in the UK. Part of 12 that would depend upon whether the rights that the U.S. 13 publisher obtained from the author included digital 14 rights. It’s the same issue we’ve been sort of talking 15 around in this whole context. 16 MARIA PALLANTE: Sure. 17 ALLAN ADLER: It is the reason, as I said, 18 that with the passage of the IDEA Amendments, we needed 19 to amend the Chafee Amendments to get specific 20 protection for publishers who would have otherwise been 21 held as infringing for allowing the digitization of 22 material that they didn’t control the right to. 0228 1 MARIA PALLANTE: And we understand the 2 complexity of contracts, but I think for the trade 3 book, I think what we’re trying to get to is, what 4 kinds of best practices do you need? What kinds of 5 incentives do you need? If you’re already making the 6 work available to the general public, to also make it 7 available in an accessible format. And Rashmi, please 8 feel free to jump in as well. 9 RASHMI RANGNATH: Well, I’m not professing to 10 be an expert on how copyright law exceptions or 11 incentives for publishers should be tailored to make 12 works available. We’re simply saying that if they’re 13 not making works available, then exceptions within the 14 law should allow works to be available to the blind, 15 and where works cannot move across borders and 16 different markets are not served by publishers with 17 accessible copies, those entities that are responsible 18 for creating accessible copies should be able to send 19 it across borders to where they’re needed. 20 MARIA PALLANTE: So if I understood that 21 correctly, if the publisher’s not making it accessible, 22 then a nonprofit or a trusted intermediary should be. 0229 1 RASHMI RANGNATH: Or whoever else that -- 2 national law or consensus indicates is the best person 3 or best entity to make the work available -- should be 4 able to make it available. 5 ALLAN ADLER: Maria? 6 MARIA PALLANTE: Yes, Allan. 7 ALLAN ADLER: If I understand the question, 8 the only way in which you have a cross border issue is 9 if you have the U.S. rights holder authorizing this in 10 the UK. If the U.S. rights holder has authorized 11 publication of the work in the UK, then it would seem 12 that if the UK rights holder deals with the issue of 13 accessibility, you’re not dealing with a cross border 14 issue. 15 MARIA PALLANTE: Indirectly you are. 16 ALLAN ADLER: But only in -- 17 MARIA PALLANTE: It’s the fact pattern that 18 we’re interested in learning more about, but I think we 19 have Jamie and we have George, then we have Keith. 20 JAMES LOVE: I’m happy to go after George. 21 MARIA PALLANTE: Okay. George? 22 GEORGE KERSCHER: Okay. So if the book is 0230 1 published in the United States and produced in an 2 accessible form, and it’s also wanted in the UK, the 3 point is we’re trying to avoid both organizations in 4 both countries manufacture the same thing. And what we 5 need is the mechanism to get the book over to RNIB, and 6 they distribute under their copyright exception 7 legally. That’s the vehicle we need. 8 MARIA PALLANTE: And I think we understand 9 that. You’ve made that point before. I think one of 10 the questions we had was does it matter to you that the 11 publisher has not already published that -- chosen to 12 publish that work to the general public in that 13 country? 14 ALLAN ADLER: Can I just speak to this? Maybe 15 George can clean it up for me. We discussed this 16 extensively. When we had this experts meeting last 17 summer, this was a really huge issue that was debated. 18 Because the Europeans in the green paper were very much 19 pushing a model of limitations and exceptions that they 20 come into play when there’s a market failure, when 21 there’s a lack of a voluntary license or something. 22 And it was basically that model. And some of the 0231 1 European groups were very keen to sort of go down that 2 road, because they’re very keen to get back by the 3 European Commission. 4 In the United States with the Chafee 5 Amendment, you had a lot of groups that have had a bad 6 experience with arguing about whether or not something 7 was available in a recently equivalent form, and in 8 going to the negotiations and the hassle. So there’s a 9 conflict, and it was sort of a huge conflict actually 10 within the room. And Judith Sullivan was part of this 11 conversation, the WIPO consultant. And the way it was 12 resolved in the conversation was that the nonprofit 13 exception, such as is done on the Chafee Amendment, 14 would be embraced with the American system, which was 15 no permission, a very broad exception -- it’s just a 16 lot of freedom of the specialized entities basically 17 using created works on the one hand. And then if there 18 was a -- but to the extent that you move beyond that 19 specialized entity, then you would have that test, is 20 the work recently available and identical in a largely 21 equivalent format for access. That’s the first part of 22 it. 0232 1 The second part of it has to do with, is it 2 published or not published in a country, or what does 3 that really mean? And that was an issue that we kind 4 of really went back and forth on. And it was probably 5 the most frustrating thing for people in the room to 6 kind of deal with that issue. And so the resolution 7 was -- and I think it was the right resolution -- was 8 to say, the condition of the export and the import is 9 that the copy has to be – it said that the person had 10 lawful access to that work or a copy of the work. 11 So basically, what people decided was that it 12 would have to be lawful in the country of import for it 13 to be authorized under their own laws. And so if they 14 didn’t consider the work a lawful import because it had 15 never legally been published, then you couldn’t do it. 16 But if for whatever reason -- 17 MARIA PALLANTE: So if a publisher does not 18 publish a work in India, nobody is suggesting that an 19 Indian nonprofit should be able to make that work into 20 an accessible format and distribute it? 21 GEORGE KERSCHER: No, the lawful access 22 applied to everybody, nonprofit -- in terms of the 0233 1 import-export it applied to -- it would apply to in 2 terms of the minimums. The lawful access was something 3 that everyone felt captured everything you’d want it to 4 capture. That is to say, the point is not to use the 5 exceptions to rewrite other fundamental rights, but 6 more -- 7 MARIA PALLANTE: I think you’re talking about 8 all the different ways that a work can make it into a 9 foreign country, and I think what we’re asking is 10 something more along the lines of right of first 11 publication and whether that would be somehow 12 overridden by a nonprofit saying, well, the publisher 13 didn’t choose to make it accessible in this country or 14 even publish in this country, so we’re going to take on 15 that for the greater good. 16 GEORGE KERSCHER: Well, if India decided to 17 give rights to people who are blind that they didn’t 18 give to people that were sighted, I personally wouldn’t 19 lobby against that, but I’d be kind of surprised if 20 that’s the way it took place. I think that the bigger 21 interest people had was that it would be left up to 22 national discretion as to what constituted a legal work 0234 1 in that country. It was not like a super right that 2 was being granted, it was the idea that you were 3 facilitating trade where everything else was otherwise 4 on the up and up from a legal point of view. 5 Now, if you have a better phrase, then has 6 lawful access to the work -- everyone has a very open 7 mind. That’s what came -- 8 MARIA PALLANTE: Well, I think we’re mindful 9 of first publication and maybe Allan, could you speak? 10 ALLAN ADLER: I think we were – well, I won’t 11 say unfortunately -- we were part of this. But when 12 Congress amended the Copyright Act in 1993 to provide 13 that the fact that a work is unpublished is only a 14 consideration of the fair use calculus, I think it set 15 up basically the criteria for essentially the vast 16 dilution of any meaning in the right of first 17 publication. And it certainly wouldn’t surprise me if 18 in the United States at some point we ran across the 19 idea of people saying that fair use should allow them 20 to publish a work not published in the United States 21 for the commercial market provided that they’re only 22 publishing it for purposes of people who have an 0235 1 accessibility issue. 2 JAMES LOVE: This isn’t a disability issue, 3 this is just a question you have about copyright in 4 general. 5 MARIA PALLANTE: And we definitely don’t have 6 enough time to talk about fair use in 20 minutes. 7 Keith, you were next? 8 KEITH KUPFERSCHMID: Let me answer your 9 initial question and then your follow-up question if I 10 can, if I understand it correctly at least. Answer 11 your initial question in two parts. One, depends on 12 whether we’re talking about the first release of 13 something or retrofitting. If we’re talking about the 14 first release of a particular software product or 15 digital content product, in many cases our members 16 companies will do their best to make sure that includes 17 the accessibility functionality. If we’re talking 18 about retroactive -- 19 MARIA PALLANTE: Keith, just interject. So 20 that’s a sort of best practice for your industry? 21 KEITH KUPFERSHCMID: Yes, yes, yes. In terms 22 of retrofitting software, digital content, it’s a very 0236 1 different story. As I think a lot of people talked 2 about in this Panel and earlier, oftentimes the cost is 3 disassociated with retrofitting -- whether we’re 4 talking about software or digital content -- is many 5 times more than the original costs, and therefore is 6 really not a viable business model. So if you’re 7 talking about, well, who’s going to bear that cost, 8 well, then, it just doesn’t make any sense for the 9 publisher to do that. They’d be out of business pretty 10 darn quickly if they did. 11 So really, you’re talking about whether we’re 12 talking about retrofitting or whether we’re talking 13 about incorporating good accessibility into the first 14 release of a product. So that’s one area. Then you 15 talked about, you asked a question about what 16 incentives do my publishers need. And I wish I had 17 come up with this idea myself -- I read it in one of 18 the comments and I don’t recall whose comment it was, 19 but somebody in their comments talked about the fact 20 that the Chafee Amendment was sort of more of a stick 21 and that maybe we need a carrot type of approach to 22 give publishers some sort of tax break in order to 0237 1 incentivize them to -- 2 MARIA PALLANTE: Stimulus package? 3 KEITH KUPFERSHCMID: Yes, exactly, exactly. 4 And I thought that was at least worth certainly trying 5 out there, and I think that certainly would give the 6 necessary encouragement and incentive for publishers in 7 certain areas to incorporate the accessibility 8 functionality into their products. And I think the 9 last issue you brought up was -- if I understand this 10 correctly -- is what happens if the original is not 11 made available in that particular country. And then 12 you really open up I have to say a can of worms – not 13 only forgetting about right of first publication, which 14 you’ve raised, but also a whole bunch of other issues 15 that have to do with different – especially when you’re 16 talking about software, which liability issues and 17 things of that nature – which a lot of times are very 18 good reasons that accompany, or a publisher is not 19 entering a particular market. Heck, they already have 20 the product. 21 And so there’s a very good reason for that and 22 all of a sudden if just making that product in a 0238 1 particular country might all of a sudden subject them 2 to some liability, I know with regard to software 3 companies where they rely on licenses quite a bit, all 4 of a sudden maybe the laws in that particular country 5 are a little bit different and they have an equivalent 6 of a first sale doctrine and maybe all of a sudden 7 you’ve inadvertently kicked in the first sale doctrine 8 even though they’ve never actually sold in that 9 particular country. So that’s also another 10 consideration. 11 MARIA PALLANTE: Yes, Danny? 12 DANNY O’BRIEN: Just very quickly just to 13 again shift this to the other context. I think there’s 14 interesting comparison with these kind of conundrums 15 and the possibility of being able to take a legal copy 16 and transform it into a viewable or acceptable format. 17 And in those sort of cases, you sort of neatly sidestep 18 this issue because what you’re dealing with there is a 19 lawful copy as Jamie says, in that particular context. 20 And you are granted a permission to render that into an 21 accessible format. Now, that limits given that there’s 22 a limit to how much a commercial eBook can be turned 0239 1 into a perceptible format. But we’re much closer to 2 that situation now where there’s a growing and rising 3 eBook backdrop than we were when we were talking about 4 trying to convert books into an accessible format. 5 And that sort of gets around this problem by 6 just moving this idea of what’s a legal copy, who has 7 liability, into the area of being able to make a 8 personal copy that’s perceptible. 9 MARIA PALLANTE: Michelle? 10 MICHELLE WOODS: Yes. Just getting back to 11 the objective of this whole day has in part been for us 12 to go to WIPO and report, and then there may well be 13 discussion about what WIPO can do in this area. And I 14 understand there are views for and against working on a 15 treaty, but putting that aside, what else would you 16 like us, if we had the opportunity, to ask WIPO to get 17 involved on this issue? What else would you like us to 18 ask WIPO to do? Are there things WIPO can do in terms 19 of training, in terms of helping with standardization 20 of formats, developing technical norms, maybe helping 21 to train and develop trusted intermediaries in 22 countries that don’t have them? Those are just some 0240 1 suggestions. Are there ideas that you have for us and 2 for WIPO about what WIPO could do across the spectrum 3 of what we’ve talked about today? 4 MARIA PALLANTE: If you could raise your 5 hands. I have Dr. Kerscher, I have Carrie, Jamie. 6 Okay. George? 7 GEORGE KERSCHER: Okay. SO one of the things 8 that has resonated with me was Peter’s statement about, 9 he doesn’t know these libraries. And I understand 10 that. You don’t want to give the keys to the kingdom 11 to people you don’t know. So the relationships haven’t 12 been established. 13 I know these people, and I trust their 14 organizations, but you don’t. So perhaps one of the 15 things that could be done is to establish a mechanism 16 for existing trusted intermediaries who want to work 17 together to model it, to do it on a small scale. I 18 don’t know how many libraries, but if there’s a way 19 under a provisional treaty or -- I don’t know -- a way 20 to authorize the movement of content across national 21 boundaries, establish the policies, procedures, best 22 practices, protection, invite publishers to view the 0241 1 process and become comfortable with the trusted 2 intermediaries that -- everybody knows RFB&D and 3 Bookshare and Library of Congress here and that’s 4 great, but once you get outside the United States, you 5 don’t know those people. So maybe we could help there. 6 Of course, I was helping Alicia Wise (ph) 7 draft a proposal where we talked about the software 8 development training materials for publishers to help 9 them in their publishing process. The amount of money 10 that was being asked of WIPO to do this was pretty 11 small. But those kinds of things would help a lot. 12 Pearson’s a big company and got a lot of resources, 13 they’re getting it together. The smaller publishers, 14 they don’t understand, if we could help them with their 15 publishing processes, provide training, tech support, 16 website, forums to ask questions, those kinds of 17 things, that would help, and develop the best practices 18 with the people who are willing to develop it and then 19 share that information in the industry, I think all of 20 those things are great ideas. 21 MARIA PALLANTE: Thank you for that very 22 constructive suggestion -- sort of pilot project. 0242 1 Carrie? 2 CARRIE RUSSELL: I agree completely with what 3 George just said. I think that we can help other 4 countries by being models for them. The three-step 5 test I think for many people, is a lot tinier, a tinier 6 allowance than Michael believes that it is. So I think 7 we need to help people in other countries realize that 8 the three-step test can help them establish -- if this 9 is possible -- can help them establish exceptions in 10 their country like we have. I think encouraging people 11 to do that, I think that because of how countries -- 12 countries seem to be much more hesitant. I think we 13 know this is true, to initiate any exceptions. So 14 somehow they think the three-step test is very, very 15 small. 16 MARIA PALLANTE: Jamie? 17 JAMES LOVE: Well, there was a long time when 18 the World Blind Union was trying to get WIPO to do some 19 model legislation on exceptions for the blind. One 20 issue that you come up with on something like that is 21 that that itself can become a negotiation. And so, 22 it’s not always possible to avoid having a negotiation. 0243 1 If anything that’s really going to be important it’s 2 going to be controversial. I’m just saying as a 3 practical matter. 4 One of the initial model laws they had was 5 something that did not include for example, the Chafee 6 Amendment. I didn’t really hear the United States 7 complaining about the model law because it didn’t have 8 the liberal Chafee Amendment provision. I was a little 9 disappointed not to see American negotiators sticking 10 up for American traditions in the model law in WIPO -- 11 that would have been good. And maybe you can insist 12 that if there is model legislation, it is as liberal as 13 the Chafee Amendment as is released in nonprofit 14 institutions. That would be very patriotic. That 15 would be good. 16 Another thing would be, in terms of the pilot 17 projects, I think that most people see the pilot 18 projects as really a constructive and useful things. I 19 know that the World Blind Union, DAISY and other people 20 have worked very hard on this trust-building, and with 21 the publishers to sort of have some trust-building 22 exercises. I see these things as operating in parallel 0244 1 with discussions about other norm setting things 2 because at the end of the day, they won’t work unless 3 you have figured out the details of these trust-making 4 things. And I don’t see why you’d want to wait for 5 either thing. Both of them are going to take a while, 6 and if you think the books before were dead slogan in 7 the UK Right to Read campaign is important, you might 8 get going now on some of these things. 9 Now, there is a big issue of can you export 10 under limitations and exceptions. And a pilot project 11 to violate a law or treaty is good. I’m all for it. 12 Don’t get me wrong. Some people might not be quite as 13 enthusiastic about that end of things. And so if you 14 want to have like a temporary suspension of treaty 15 obligations or national laws, that’s interesting, too. 16 Now, you might just – if people don’t know if you can 17 do a copyright exception across borders, you might just 18 go to -- instead of WIPO you might go to the WTO. They 19 did that on the Doha Declaration. They had this 20 problem of exporting drugs for medicine across borders 21 and they had a separate declaration on November 14, 22 2001 in Doha where they clarified that they would find 0245 1 a solution, and two years later they did on that topic. 2 Maybe some people here would rather see the 3 World Trade Organization instead of WIPO and having you 4 say something about what the trip does or does not say 5 about the three-step test as it relates to this 6 problem. I think that might be actually something to 7 think about if you’re looking around for things to do 8 other than to go to WIPO. That seems to me at the root 9 of the problem about whether you can import and export 10 across borders. 11 The other thing is that WIPO -- the proposal 12 WBU and that will be tabled by Brazil, calls for a 13 database of available works by WIPO. Actually, Michael 14 talked about this earlier -- it’s Article 10 in the WBU 15 proposal. And actually I think that would be a very 16 useful thing for WIPO to do, for a couple of reasons. 17 It would make it very transparent about what the 18 landscape of accessibility was, and it would promote 19 the interest of publishers that are trying to make 20 accessible works in both the nonprofit and the for 21 profit fields. So if Pearson wants to advertise it as 22 successful works, if the Bookshare wants to advertise - 0246 1 - if anybody has an accessible work, I think that would 2 be good. And that’s something that WIPO could do 3 without a treaty. They could set up such a voluntary 4 database. 5 MARIA PALLANTE: Thank you, and I feel 6 compelled to say if it wasn’t clear that the United 7 States government was not suggesting that we 8 voluntarily violate a treaty but rather that we somehow 9 have a facilitating role in a pilot project that might 10 be a voluntary business model between publishers, 11 libraries, technologists, et cetera. 12 JAMES LOVE: There’s voluntary licensing 13 that’s taking place right now, and it doesn’t require 14 WIPO. Bookshare’s doing it already, and there’s 15 conversations year-in, year-out, month end and month 16 end. It shouldn’t be a bad face smokescreen and kind 17 of like a strategy to deter people from WIPO doing its 18 job, which is dealing with intellectual property norms 19 by turning a work agenda at WIPO on copyright 20 limitations and exceptions on a negotiation session 21 with the publishers, which arguably should be taking 22 place outside of that UN agency -- unless you want the 0247 1 UN to start supervising all the negotiations of all 2 your licensing contracts. That would be interesting. 3 I think we should consider that. 4 But if it’s about setting intellectual 5 property norms and not about managing Random House, 6 maybe you’ve got the wrong job. The other thing you 7 might ask is you might ask the President of the United 8 States, Obama, who disabled text to speech on those 9 books about two weeks ago through Random House, and 10 Vice President Biden, who did the same thing, that that 11 sets a very bad example. And when he lines up with the 12 Pope and Mother Teresa and they all disable their books 13 so people who are blind can’t get access to them on 14 Kindle, I think that really shows the gap between 15 what’s happening on the ground and what should happen 16 on the ground. 17 MARIA PALLANTE: Okay. We’re approaching 5 18 o’clock, so at this time I’d like to ask my colleagues 19 on the Panel if they have any final questions? Neil, 20 Michael, Michelle, Steve? And now, to the 21 participants, does anybody have any final concluding 22 remarks? I’ve got Mr. Mudd, Mr. Adler, Mr. Love. 0248 1 Okay. Carrie, the floor is yours -- Gary? 2 GARY MUDD: I just wanted to make a correction 3 to something I said earlier. Allan asked if the Louis 4 database and the NIMAC repository were working 5 together, were searchable together. I said yes, it is 6 this summer that they will be searchable, and that’s 7 why I wanted to correct that. Thank you. 8 MARIA PALLANTE: Allan? 9 ALLAN ADLER: Well, I just wanted to finish 10 by, we’ve been talking about this treaty that 11 apparently is going to be tabled at the meeting but we 12 haven’t really talked much about it. This treaty 13 contains a provision on circumvention of technological 14 measures, it contains a provision on often works for 15 commercial uses -- this is pretty far-reaching stuff 16 that as far as I can tell, goes way beyond the issue of 17 whether or not we can provide accessible versions of 18 American works outside American borders. 19 It just seems to me that our government -- 20 meaning no disrespect to the Panel of course, because 21 you weren’t in that particular segment of the 22 government -- but our government in the form of the 0249 1 U.S. Congress has pretty much left the publishing 2 industry and the other stakeholders here to flounder 3 around with this issue. Which is why as I say, in the 4 past 13 years we’ve devoted as much time working on 5 state and local legislation as we have on federal 6 legislation, and now we’re being asked to consider an 7 international treaty. I don’t think that the issue of 8 ensuring cross-border access to accessible versions of 9 works is at this stage of the process, a sufficient 10 justification for moving away from all of the 11 unresolved work that’s still left in trying to develop 12 consensus -- harmonization if you will, beyond just 13 standards on these issues in the way they’re addressed 14 here in the United States. 15 It’s pretty clear to me that publishers -- I 16 see this within my own organization’s membership -- 17 make their own decisions about what to do with this 18 based on what they think is appropriate and good for 19 them in the marketplace. Many of them have decided, as 20 I said, to work with Bookshare. Others are working 21 through other means. We know that there is some 22 voluntary licensing across border that these publishers 0250 1 have agreed to. 2 I really think we should be seeing more of 3 that continue to percolate in finding ways in which we 4 can continue to develop those efforts before we reach 5 out to something that is so far beyond anything that 6 we’ve accomplished here in the United States and 7 anything that’s likely to meet the requisites for 8 participation by other countries who’ve accomplished 9 even less on this issue than we have here. 10 MARIA PALLANTE: Thank you. Jamie? 11 JAMES LOVE: Well, I look forward to Allan’s 12 endorsement that the U.S. pull out of the active 13 negotiations, because all of these foreign distractions 14 are obviously overtaxing our ability to solve domestic 15 issues. But I mean, the reality is is that Allan’s 16 organization and Fritz’s organization are hyperactive 17 through the USTR, through bilateral trade pressures, 18 through FDA negotiations, regional negotiations, 19 unilateral actions through the World Customs Union, 20 through the act in a million different ways, to have 21 international norm setting activity in areas that they 22 think are in the interest of the publishers to enforce 0251 1 and expand their rights. 2 Now, I think that -- they’re businesses. They 3 have a reason to do that. People that have reading 4 disabilities, that can’t even read a book, in other 5 countries, countries that have like 100 books in 6 Braille available to them or something like that -- 7 they also have rights and they have interests. And 8 they’re going to expect that there be some attention to 9 their needs as well. IN fact, I think they’ve been 10 underserved for the past two decades. 11 And so this sort of idea that the domestic 12 agenda is so important you can’t do the international - 13 - well, just fire all your international lobbyists, 14 because they are really, really making a lot of work 15 for us, too. Let’s just call truce on all the 16 international negotiations for a while. But that’s not 17 going to happen. I wish it would happen, but it’s not 18 going to happen. So I think that realistically, 19 international policy is not just about the giant big 20 powerful corporations that control this town. It’s for 21 ordinary people. It’s for people who are powerless and 22 weak, because in politics sometimes they’re given a 0252 1 voice by some political figures that think they count. 2 MARIA PALLANTE: And Carrie, the last word? 3 CARRIE RUSSEL: I just wanted to given the 4 maze of Chafee and everything else that is out there, 5 the new technologies, I just want to commend the 6 existing federal agencies that are working with the 7 blind and visually impaired, the Recording for the 8 Blind and Dyslexic, the National Library and the 9 American Printing House -- they do an excellent job 10 given what they have, and they’re very dedicated 11 workers. And their librarian agents throughout the 12 states have been really amazing people to talk to. 13 MARIA PALLANTE: Thank you for that. Okay. 14 Well, that concludes our day. Again, on behalf of the 15 Copyright Office and USPTO, we are very grateful for 16 our time and the comprehensive remarks that were made 17 here today. The transcript, both written and audio, 18 we’re hoping will be on our website, copyright.gov, 19 later this week. And with that, I’d like to turn it 20 over to Michael Shapiro, who is of course the head of 21 the U.S. Delegation, for some concluding remarks. 22 MICHAEL SHAPIRO: Thanks, Maria. At the end 0253 1 of a long and I think enormously productive and 2 stimulating day here in beautiful Washington, D.C., 3 I’ve been asked to say a few words of where we’ve been 4 and where we are and where we will be going or might be 5 going at the international level. At the 17th Session 6 of the Standing Committee on Copyright and Related 7 Rights at WIPO, we had a very stimulating discussion 8 also of exceptions and limitations broadly, including 9 exceptions and limitations for the blind and visually 10 impaired. And at that meeting, the U.S. Delegation 11 promised that we would come back home and begin a 12 series of consultations with all of the stakeholders 13 whose equities and interests touched on this important 14 issue. And when I said that, I was very hopeful that 15 the discussions would be productive and stimulating. I 16 think as a first round, this session far exceeded my 17 expectations. I’ve enjoyed every minute of it. I’ve 18 learned a great deal. 19 So what’s going to happen next? Next week the 20 U.S. Delegation will leave Washington and go to Geneva 21 for the 18th Session of the Standing Committee on 22 Copyright and Related Rights. And at that session, we 0254 1 will provide a briefing on what we’ve learned from the 2 public comments, the reply comments, and today’s 3 discussions. We will do so with the hope that we will 4 stimulate a discussion in that forum and learn from 5 other delegations as well, because we firmly believe 6 that in this discussion it’s so important to begin them 7 at home where the voices of all stakeholders can be 8 heard. And we want to learn from our other colleagues 9 what they’re learning as well. 10 Finally, we expect to provide this additional 11 information, and we assume that this will be the 12 beginning of a conversation that will advance this 13 important topic. That’s where we are. 14 MARIA PALLANTE: Thank you, everybody, and for 15 those of you that have traveled, safe travels. 16 17 18 (Whereupon, at 5:01 p.m., 19 the proceeding was concluded.) 20 * * * * * 21 22 0255 1 CERTIFICATE OF COURT REPORTER 2 3 I, NATALIA KORNILOVA, the office before whom the 4 foregoing hearing was taken, do hereby certify that 5 the witness whose testimony appears in the foregoing 6 pages was recorded by me and thereafter reduced to 7 typewriting under my direction; that said hearing is a 8 true record of the proceedings; that I am neither 9 counsel for, related to, nor employed by any of the 10 parties hereto, nor financially or otherwise interested 11 in the outcome of this action. 12 13 14 15 16 17 NATALIA KORNILOVA 18 NOTARY/COURT REPORTER 19 IN AND FOR THE DISTRICT OF COLUMBIA 20 21 22