Intellectual property [sic] – it’s not about property

One misconception about copyright is the notion that protected works are the “property” of rights holders. Because of this mistaken belief, you will hear too many authors, creators, and other rights holders say that the public is stealing their property. It is particularly aggravating when information users are accused of stealing when what they are doing — let’s say making an accessible copy for a blind person — is lawful. Yes, at a recent seminar on the Marrakesh Treaty (pdf) at the American University’s Washington College of Law, an audience member intimated that the blind want everything free, damn them, and are destroying the livelihood of artists. They describe this kind of stealing as if there is a secret factory where unlawful copies are made and handed out to a bunch of malcontents with a penchant for committing federal crimes.

malcontents with a penchant for committing federal crimes

Let me set the record straight. Copyright is a set of exclusive rights provided by Congress to rights holders as an incentive to create, in the hope that they will distribute their works to benefit the public. Notice the term “rights holders” — creators hold rights, they do not own property. This distinction should not be considered lightly, because “property language” is used to shape our understanding of information policy in ways that devalue and limit user rights to information.

I really cannot fathom how anyone would say that the blind are thieves when accessible copies of books are not even available for purchase. Dr. Marc Maurer of the National Federation of the Blind and others remind us: people with disabilities do not want to be treated like second class citizens, expecting special handouts and giveaways. They want to purchase books just like everyone else, but accessible books are not available for sale. This is called “market failure.” In this case, authors or their publishers do not want to invest resources to satisfy a small market. It would not be in their economic interest to do so because they would not recoup costs. Market failure is a signal that an exception to copyright is necessary to fairly meet the information needs of the public.

One would hope that with advancements in digital technology and more public awareness about the benefits of universal design, more accessible content would be available. And it is. Now it is easier to create accessible files from the beginning of the production process. Yet rights holders and manufacturers continue to place access roadblocks. Some e-reader device manufacturers refuse to produce accessible e-book readers. These same manufacturers are asking the FCC to be excused from implementing laws passed by Congress to ensure that people with disabilities have access to digital service.

The Authors Guild has urged its members to think twice about signing away “audio rights.” Some authors refuse to allow that their content be made available with text-to-speech functionality. In fact, there is a trade book publisher that uniformly “turns off” text-to-speech capability for fear that accessible books, with the computer generated voice functionality would cut into audiobook sales. Really? Wouldn’t everyone, including blind people, prefer to purchase an audio book rather than having a computer voice read to them?

Copyright was created by Congress to ensure that more people had more access to information to advance learning for the benefit of the public. No one said that access would be free. We want creators and rights holders to be paid for their work, but if you don’t even make it available for purchase in accessible forms, then quit complaining.

About Carrie Russell

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy (OITP). Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

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