Copyright and Disability: WIPO Consensus Document

Claude AlmansiBy Claude Almansi
Editor, Accessibility Issues
ETCJ Associate Administrator

The ongoing – June 15 to 24, 2011 –  22nd session of the Standing Committee on Copyright and Related Rights (SCCR/22) of the World International Property Organization (WIPO) is addressing, once again, the problem and removal of copyright barriers to accessing knowledge and information by people who are blind, sight-impaired or have other print disabilities.

In fact, copyright laws are national and — so far — international treaties and legal instruments have systematically aimed at globally reinforcing prohibitions, and rich countries, upholding the position of the content industry, have always opposed  globalization of copyright restrictions in favor of people with disabilities, alleging that if  they were officially globalized by WIPO, this would lead to further restrictions in favor of other groups.

A book about to fall into a rat hole, with rats watching

From David Hammerstein's “I just called to say I want to read” post about a former discussion of a WIPO Treaty for the Blind, Visually Impaired and People with Print Disabilities. Site of the IP Policy Committee of the The Transatlantic Consumer Dialogue (TACD). Sept. 25, 2010.

Concretely, this means for instance that if a digital and accessible copy of a copyrighted work is made for people who are blind in one country, it is often forbidden to make it available or sell it to people with similar disabilities in other countries: this entails a duplication of the production costs for such accessible copies, which can be prohibitive in some parts of the world.

As James Love, Director of Knowledge Ecology International, wrote in “White House to Decide If Treaty for the Blind Moves Forward” (Huffington Post, June 14, 2011):

In 1982, WIPO and the United Nations Educational, Scientific and Cultural Organization (UNESCO) recommended model exceptions in copyright law for persons with disabilities, and in 1985, a WIPO/UNESCO expert called for a treaty to facilitate the cross-border sharing of accessible works. After decades of inaction on those recommendations, WIPO took up the issue in 2008, and has been involved in a surprisingly bitter and heavily lobbied debate ever since.

Publishers have opposed a treaty for disabilities on the grounds that it will set a precedent that copyright treaties can be designed to address problems facing consumers, rather than just expanding the rights for copyright owners. While the exception for persons who are blind or have other disabilities has almost no economic impact on publishers, they are concerned about possible expansions of copyright exceptions for libraries or education — both major markets for publishers.

However, at the present SCCR, Argentina, Australia, Brazil, Chile, Ecuador, Mexico, Paraguay (the presenters of the original Treaty Proposal for the Blind, Visually Impaired and People with Print Disabilities) and the United States of America (which formerly staunchly opposed it, together with Canada, EU and other rich countries) have now agreed on a working paper entitled Consensus document on an international instrument on limitations and exceptions for persons with print disabilities, which can be downloaded from SCCR/22.

While the title only uses the word “instrument,” rather than “treaty,” the initial considerations say:

Taking into account the importance of an international legal instrument/joint recommendation/treaty both to increase the number and range of accessible format works available to visually impaired persons/persons with a print disability in the world and to provide the necessary minimum flexibilities in copyright laws that are needed to ensure full and equal access to information and communication for persons who are visually impaired/have a print disability in order to support their full and effective participation in society on an equal basis with others and to ensure the opportunity to develop and utilize their creative, artistic and intellectual potential, for their own benefit and for the enrichment of society [my bold]

Also of interest:

ARTICLE B
BENEFICIARY PERSONS
A beneficiary person is a person who
(a)    is blind;
(b)    has a visual impairment or a perceptual or reading disability, such as dyslexia, which
cannot be improved by the use of corrective lenses to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or
(c)    is unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading.

In fact, some national copyright laws only foresee a copyright restriction for people with a “sensory disability”, thus excluding those with other disabilities that prevent them from reading print. If this Consensus document gets adopted at WIPO, such laws will have to be corrected.

The formulation of the part about DRM is also very important:

ARTICLE F
TECHNOLOGICAL PROTECTION MEASURES
Member States/Contracting Parties should/shall ensure that beneficiaries of the exception provided by Article C have the means to enjoy the exception where technological protection measures have been applied to a work.
In the absence of voluntary measures by rightholders and to the extent that copies of the work in the accessible format are not available commercially at a reasonable price or via authorized entities, Member States/Contracting Parties should/shall take appropriate measures to ensure that beneficiaries of the exception provided by Article C have the means of benefiting from that exception when technical protection measures have been applied to a work, to the extent necessary to benefit from that exception.

It remains to be seen how the SCCR will vote on these issues. However, as James Love said in his article, the position of US is crucial: therefore the fact that  this Consensus document is also co-presented by US seems a good sign.

4 Responses

  1. I have not worked in this area since the 1980s so I am not currently aware of the status of the technologies. However since the 1980s all materials developed by the federal government in the USA are required to be accessible to disabled individuals. This means in the media ares captions for the deaf and descriptive video for the blind.In the early 1980s we developed radio for the deaf blind. This was a radio program translated into Braille.

    • Thank you for your feedback, Frank. Here, rather than about technology, the issue is about the present copyright regime that prevents international diffusion of copyrighted accessible works.

      The evolution of technology, which could potentially confer blind and print disabled people access to all written works is just heightening the frustration of print-disabled users at this copyright barrier to international diffusion, and at the long-standing failure of international bodies to remove it.

      As the “Early history or the WIPO negotiations on copyright exceptions” section of the Background and update on negotiations for a WIPO copyright treaty for persons who are blind or have other disabilities (KEIonline, April 7, 2011) reminds us, all attempts to address this barrier, since 1981 when WIPO and UNESCO agreed to create a Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Produced by Copyright, have so far petered out miserably.

      Now the copyright barrier to the international diffusion of written works is also a bane in other fields, particularly education. And this is why the group of African countries at WIPO advocated a treaty that would also cover education and culture, and why the ambassador of Yemen to the UN suggested to include illiteracy among print disabilities (see “Back to the literacy issue” in Accessibility and Literacy: Two Sides of the Same Coin).

      But this entails particularly high costs for accessible works, which remain expensive to produce, in spite of the progresses of digital tech. As an accessible version of a textbook produced in one, say, Spanish-speaking country may not be exported legally to other Spanish-speaking countries, this means that the latter have to re-do the accessible version from scratch, for instance. And the same obtains for other languages, even English as far as I understand.

      The US lead in lawmaking about, and in implementing, accessibility is marvelous – not only for Americans, but also for people in other countries who have been able to refer to the US example in advocating similar measures. However, this has made the previous fight waged by US governments against the removal of this copyright barrier that prevents the international diffusion of accessible texts, all the more paradoxical and unacceptable.

      True, the US has not been alone in fighting against the removal of this barrier in the past: during the 2009 18th session of SCCR, it was the whole WIPO “Group B” (comprising US, Canada, the Vatican, EU countries, and some other rich countries) that attempted to kill the proposal of a treaty for the blind, visually impaired and people with print disabilities.

      This attempt was thwarted by the public outcry via twitter, and by bloggers: see James Love’s Obama Joins Group to Block Treaty for Blind and Other Reading Disabilities (Huffington Post, May 28, 2009), pointing directly to the responsibility of the US administration; and Cory Doctorow’s USA, Canada and the EU attempt to kill treaty to protect blind people’s access to written material (BoingBoing, May 29, 2009). So the treaty proposal survived.

      So this is why the present US participation in the Consensus document described above seems so important: if the US now agree on the need for an ” instrument/joint recommendation/treaty” aimed at removing this barrier, chances are that other rich “Group B” countries will follow suit. Provided the US government does not change tack yet again, that is: see the “Negotiations from 2009 to 2011” section of Background and update on negotiations for a WIPO copyright treaty for persons who are blind or have other disabilities (Knowledge Ecology International. April 6, 20119.

  2. […] Copyright and Disability: WIPO Consensus Document « Educational … Comments […]

  3. The “Conclusions” (PDF) of the 22nd session of WIPO’s Standing Committee on Copyright and Related Rights (SCCR – Geneva, June 15-24, 2011) say, under “Limitations and Exceptions: Persons with print and other reading disabilities”:

    2. The Committee took note of two new documents, namely the comparative List of Proposals Related to Copyright Limitations and Exceptions for the Visually Impaired Persons and Other Persons with Print Disabilities, prepared by the Secretariat (SCCR/22/8); and the Draft WIPO Treaty on Exceptions and Limitations for the Persons with Disabilities, Educational and Research Institutions, Libraries and Archives; proposal by the African Group (SCCR/22/12), which revised previous proposal put forward in document SCCR/20/11.
    3. The Committee thanked the proponents of all four substantive proposals for their sincere efforts to hold meaningful discussions in informal consultations to explore points of commonality and possible convergence among the four substantive proposals. Some Members who participated in those informal consultations released a “non-paper” which was later submitted as a “Consensus document on an international instrument on limitations and exceptions for persons with print disabilities” from a group of Member States (document SCCR/22/15). Members made comments and asked preliminary questions. A number of Members endorsed this document and signaled their interest in sponsoring it. On the basis of the above proposal and taking into account the various suggestions made by some Members, a “Proposal on an international instrument on limitations and exceptions for persons with print disabilities” was presented by a number of Members (document SCCR/22/15 Rev. 1).
    4. Following further discussion, the Committee asked the Chair to prepare a Chair’s text for an international instrument on limitations and exceptions for persons with print disabilities (document SCCR/22/16), which would constitute the basis for the future text-based work to be undertaken by the Committee in its 23rd session.
    5. The Committee agreed to recommend to the WIPO General Assembly that Members of the Committee continue discussions regarding the Chair’s document SCCR/22/16 with the aim to agree and finalize a proposal on an international instrument on limitations and exceptions for persons with print disabilities in the 23rd session of the SCCR, in accordance with the timetable adopted at the 21st session of the SCCR.
    6. The Committee encouraged the stakeholders to continue the work of the Stakeholders’ Platform.

    The mentioned document SCCR/22/15 Rev. 1 is available at wipo.int/edocs/mdocs/copyright/en/sccr_22/sccr_22_15_rev.pdf. According to the Conclusions of SCCR/21, the 23rd session of the SCCR in which this international instrument on limitations and exceptions for persons with print disabilities should be finalized will take place in November 2011.
    This not yet the end of the road: this international instrument must first be adopted, then signed, then implemented in national laws. But it is nevertheless a sign that things are finally moving.

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