Comments on proposed WIPO treaty to permit blind users to circumvent DRM

(Janet: ianal)

This post is a summary of my thoughts on a thread in the Access to Knowledge email list. The A2K is generally an announce flavoured list but this particular issue has generated some dialogue.

The initial post is titled:
[A2k] DRM and the World Blind Union's Proposed Treaty for Reading Disabled Persons
There are some title changes through the discussion.

The following is a post I contributed:

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Greets

OK so if we have a blind person and a DRM media item
to effect access we need:

• a copyright law which includes a useful limitation and exception for the intended use and user
• a treaty which permits circumvention of the DRM for that type of user and use
  

In Australia it is illegal to circumvent a TPM, it is also a felony to develop tools which do so or to distribute those tools. If the blind user is not able to engineer circumvention themselves, we would also need:

• the right to delegate that exemption to a possibly sighted engineer/organisation
• the right to delegate the permission to develop a tool/means of circumvention to a possibly sighted engineer organisation
• the right to delegate a permission to distribute or share the tool and/or the resulting accessible media back to the user.
• there may be cost issues associated with sourcing this kind of expertise which might be difficult to afford for individual users and so it is likely that some wider sharing of either the media or the tools would still be needed to make the material accessible in a cost effective and a timely manner.
  

If we have users who are deaf, who use a mouthstick, or who work with other kinds of accessibility issues then each of those groups would need to be able to source engineering and distribution to suit the kinds of issues they face with the media which are of issue to them.
[snipped a bit about education and library uses]

• What kind of approach should be taken to make it possible for these acts of engineering, distribution and use to occur on behalf of the blind user by a third party?
• Similar question for engineering, distribution on behalf of other accessibility purposes.
• Similar question for engineering, distribution on behalf of education, library, health and other civic uses which could easily impact a blind user as well.
  

I guess I am concerned that this feels like a legal Barrier Reef.

In Australia there are existing laws about providing goods and services in an accessible manner. A user successfully sued the Olympic Games for a website which did not make it possible to purchase tickets in an accessible manner.
Is it possible to use that kind of approach to ensure that media is provided in an accessible way and that circumvention and distribution for any legal use or on behalf of users who require access to means of circumvention is a safe thing to participate in for all those in the supply chain.

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Tonight Paul Lehto posted a comment drawing parallels between his experience in contesting civil rights with digital voting technologies and the legality of purveying information using inaccessible technology.

"Both with DRM (Digital Reformatory Mandates) contracts and with elections, governments and corporations are increasingly using contracts/compacts/treaties or licensing contracts as an improper method of “opting out” of constitutional limitations or core human rights enforcement, instead of using the only proper method available: actually amending the constitution. Just hours ago, Washington state become the 5th state to pass the “National Popular Vote Compact” which is en end-around the relatively unpopular Electoral College method of electing U.S. Presidents.
http://www.seattlepi.com/local/6420ap_wa_electoral_college.html?source=mypi

Now, I myself don’t particularly like the Electoral College, but it’s even more fundamental that contracts can’t be used to modify core rights at all, in most cases, and in any case they certainly don’t modify the rights of those who haven’t even signed the bloody contract, digitally or otherwise.

With Digital Reformatory Mandates it seems to me that, among other things, big corporate providers have no intention of following constitutional and legal schemes of copyright that require that knowledge always (eventually) make it into the public domain. There doesn’t appear to be any real intention of making available an unrestricted public domain version of the work seventy or more years later (or whatever the applicable copyright period happens to be). As such, these contracts also go above and beyond what fundamental law allows. The UDHR "Universal Declaration of Human Rights" recently cited on this list aptly points out that “IP” “rights” are not on a par with core human rights, they are privileges handed out at the discretion of governments.

In contrast, inalienable rights consist of things (in the USA at least) as simple as the right to file bankruptcy (no contract is valid that purports to waive that right) or the right to seek a divorce. Similarly, one may not waive one’s right to vote by contract or other core rights.

If the list agrees that knowledge and access thereto is a core human right, and if the list agrees that licensing contracts or technological structures that put freedom and knowledge in a kind of private prison via Digital Reformatory Mandates, then what is called a “facial attack” on the DRM regime is clearly available in various forms."

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Australia does not have fair use, it does not have the same Constitutional liberties which exist in the USA, however we do have laws ensuring people should have access to goods and services in an accessible manner.

I don't know which way this debate will proceed but in either direction the debate about facilitating accessible technologies should raise some interesting issues for those who may need to unpick DRM/TPM issues from either a technical or a legal perspective.

/me hopes that what this means is that DRM effects disfunction that we already have legal recourse to outlaw.

Janet (XYL)