DREAM ITN
Final Deliverable
Abigail Rekas
Centre for Disability, Law and Policy, University of Ireland, Galway
Supervisor: Professor Gerard Quinn
DREAM work package: Re-balancing Intellectual property (copyright) with the
disability rights to enable blind & deafblind users to access electronic media
April, 2015
1 1.
Introduction to My Topic/Research Questions.
The research envisaged by this work package was based around a very specific
movement. At the time this work package was drafted, the campaign to end the socalled “book famine” was beginning to reach critical mass. The term “book famine”
referred to the fact that, at that time, less than 5% of all books published annually in
the developed world were then transposed into an accessible format,1 a number that
dipped to approximately 1% in the developing world.2 This meant that persons with
print disabilities3 had significantly less access to books than those who do not need a
specialized format to access print material or the written word.
While the international community had been aware of the issue for many years, it was
not until the World Blind Union (WBU) and several strategic partners drafted a treaty,
which was then put forward at the World Intellectual Property Organization4 by
Brazil, Ecuador and Paraguay (later joined by Mexico) in 2009 that there was any real
movement to address the problem. This is not to discount the work done in 1985 by
the Executive Committee of the Berne Union and the Sixth Ordinary Universal
Copyright Convention together with UNESCO that produced a study entitled
Copyright Problems Raised by the Access by Handicapped Persons to Protected
Works in 1985. This work, while extremely thoughtful and thorough, did not actually
increase access for the print disabled.
The WBU treaty was perfectly poised to make real change for a variety of reasons,
including the recent coming into force of the United Nations Convention on the
1 Accessible formats include: Braille, large print, audio, digital output for a refreshable Braille reader and Digital Accessible Information SYstem (DAISY) standard books which can be digital files encompassing a number of accessibility functions (this is a non-­‐exhaustive list, as technology continues to evolve). 2 This number has since improved to approximately 7%. World Blind Union Press Release, 18 Dec. 2012. http://www.worldblindunion.org/English/Pages/default.aspx 3 For the purposes of this paper, the term Print Disability will encompass any disability that limits a person’s ability to access standard text material. While there are many disabilities that affect a person’s ability to read and understand print material, this paper is limited to those visual, perceptive and motor impairments that do not require substantive alteration to the content of a work to enable access. 4 The World Intellectual Property Organization administers all treaties relating to copyright (including the Berne Convention), except the TRIPS agreement of the WTO. WIPO is an agency of the United Nations, established in 1967. There are 184 member states, including China, the EU, the United States and the Russian Federation, and 250 accredited observers, including the World Blind Union and International Federation of Library Associations. The Standing Committee on Copyright and Related Rights (SCCR) is the committee that debates and negotiates any new international instruments relating to copyright. (WIPO http://www.wipo.int, last accessed June, 3 2014). 2 Rights of Persons with Disabilities (UNCRPD).5 Article 30.3 of the UNCRPD
requires that State Parties take all appropriate steps to ensure that the intellectual
property framework (primarily copyright) does not in itself create an unreasonable or
discriminatory barrier to access to cultural materials. The UNCRPD was the first
international treaty to specifically address the problem of copyright policy closing
doors to access to cultural materials.
International pressure was increased by the perception, particularly prevalent in the
developing world, that the balance of intellectual property had shifted too far away
from access. This had a great deal to do with the approaching deadline for Least
Developed Country Members (LDCs) of the World Trade Organization to implement
the Trade Related Aspects of Intellectual Property (TRIPS) agreement,6 which
imposed the obligation to place strong Western style protections for Intellectual
Property on LDCs. Users rights, and access to intellectual property for LDCs
combined with the “right to read” campaign and gave legs to a movement that had
languished for almost 25 years.
The work package, as drafted, was intended to analyze the proposed WBU treaty, and
the implications it would have had for European Union (EU) law and policy.
Additionally the work package called for examining how copyright law within the EU
must change to enable the flexibility required by the CRPD, so that it did not become
a barrier to access for persons with disabilities. Lastly, the work package called for
the researcher to examine how best to rebalance intellectual property to ensure access
without disadvantaging European business.
However, events conspired to broaden the scope of that research. Namely, the
proposed treaty became a reality. The WBU treaty through much negotiation became
the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are
5 Convention on the Rights of Persons with Disabilities, Art. 30.3 G.A. Res 61/106, U.N. Doc. A/RES/61/106. (Jan. 24, 2007) entered into force May 3, 2008) [UNCRPD] 6 LDCs were initially given an extension to implement the TRIPS agreement with the establishment of the World Trade Organization. Extensions continue to be granted recognizing the need for further technological and financial capacity within LDCs. TRIPS implementation was extended in 2013 to 2021, or until they are no longer a LDC member, whichever is sooner. (http://www.wto.org/english/tratop_e/trips_e/ldc_e.htm) 3 Blind, Visually Impaired or Otherwise Print Disabled.7 While the treaty is not yet in
force, it changed the center of gravity of this work package from analyzing a proposed
treaty benefiting a subsection of disabled persons, mainly the print disabled, to
analyzing how article 30.3 of the UNCRPD could be more broadly understood to
create access to a great variety of cultural materials for a more diverse group of
disabled persons.
As the research broadened after the Marrakesh Treaty was born, I began to question
what exactly cultural materials are, and why they are important. If the scope of my
research extends beyond books, and I believe it should based on the text of Article
30.3, then what exactly should it cover? For the purposes of my research, I have
decided that the term “cultural materials” applies to works that are protected by
copyright. This is a limited understanding, but given the context of Article 30, which
covers Participation in Cultural Life, Recreation, Leisure and Sport, it seems
appropriate. Copyright protects “original works of authorship… fixed in any tangible
medium of expression;”8 it can cover books, music, films, photographs, sculpture and
other art, architecture and even choreography among other things.
Some might say that access to cultural materials may not seem to be as important as
the right to adequate food and medical care, particularly in the developing world.
However, it has been recognized that all human rights are reliant on other rights for
their realization. The Vienna Declaration and Programme of Action, as adopted by the
World Conference on Human Rights states: “All human rights are universal,
indivisible and interdependent and interrelated. The international community must
treat human rights globally in a fair and equal manner, on the same footing, and with
the same emphasis.”9 It is impossible to be effectively politically active if one has no
food, it is difficult to have food if one has no education, and it is difficult to have
education if one has no access to books.
7 WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled, VIP/DC/8 REV (June 27, 2013 (treaty not yet in force)) (Marrakesh Treaty). 8 Black’s Law Dictionary (9th ed. 2009). 9 Vienna Declaration and Programme of Action, as adopted by the World Conference on Human Rights art. 5 (25 June 1993) 4 2.
My Research Journey.
The research initially involved in this work package was primarily statutory analysis
at the national, European and international levels. There was an element of impact
assessment to determine how exceptions and limitations to copyright had functioned
to create a greater degree of access to books. It also involved a surprising amount of
historical research to orientate the research and explain the present state of affairs.
This type of research was needed to bridge the gap between intellectual property
scholars and disability rights scholars.
Human rights and copyright are two spheres of research and policy that have been
developing and becoming more robust over the last fifty years, but the intersection
between them was not addressed until fairly recently.10 This intersection was
highlighted and addressed in the UNCRPD in Article 30.3, which emphasized the
need for balance between access for persons with disabilities and protection of
intellectual property. This is the first international treaty explicitly to address the
tension between access and authors rights, and to squarely come down on the side of
access.
As the fields of copyright and disability rights developed independently, the scholars
and stakeholders working within those spheres have not traditionally communicated
to any substantial degree. There is a substantial disconnect between the two groups. In
order to explain to either “side” with any semblance of credibility, I needed to be
grounded in both fields.
Before embarking on this research project I was unaware just how ignorant each silo
was of the work of the other. Indeed, I was ignorant of a great deal more of the
development of disability law and policy than I had known. The research I had
planned was complicated by this fact. On top of my own ignorance, I learned that in
many cases I had to explain concepts of intellectual property that I took for granted,
as my academic background had focused on intellectual property. All too often I
found myself faced with blank stares, and the question “so what?” coming from both
sides of the divide.
10 For a primer on the intersection of human rights and intellectual property, I recommend Laurence R. Helfer and Graeme W. Austin, Human Rights and Intellectual Property, (Cambridge University Press 2011). 5 In order for my research to bridge this gap, I had to change the course of my research,
and added a great deal more foundational knowledge, beginning with concepts of
property, and justifications of intellectual property, and including with the
development of access to cultural content as a human right. In order to defeat the “so
what” stare, I have to be able to tell the story of copyright and the story of the battle
for access in a way that is accessible to non-specialists.
The least anticipated turn of my research journey was the creation of the Marrakesh
Treaty. I do not think that anyone expected the treaty to come into existence so
quickly, particularly after it had apparently stalled for over a year. While the research
outlined in the research package was focused on the potentiality of the treaty, the
research I have conducted for the past year, since the creation of the treaty has been
much broader in scope. Instead of looking at this singular battle for accessible books,
I have been looking at the actual impact of that treaty, and what it accomplishes, as
well as how policy makers can learn from the process to address other battles for
access to cultural materials. The birth of the treaty changed the direction of my
research substantially.
The most surprising thing I discovered in my research is that intellectual property is
only a relatively small piece of the puzzle of access to cultural materials. Other pieces
are the attitudes of the advocates involved, the various tools used to ensure access, the
fragmentation of approach across different countries and lastly, the lack of
cooperation between the legislation around the rights of disabled persons and
intellectual property legislation.
Copyright is a negative right and it is extremely limited in what it can accomplish to
ensure equal access to cultural materials. I find it helpful to imagine copyright as a
field bounded by a fence. There is a gate in the fence, and the copyright holder
controls who can come into the field. Exceptions and limitations to copyright tell the
copyright holder whom he or she must not bar from the field, and that is as far as they
go. There is no positive obligation on the copyright holder to find people to come into
his or her field, or to make his or her field accessible. The copyright holder simply
6 cannot bar those visitors who fall into the category outlined by exceptions and
limitations.
My research journey has lead me to believe that my primary goal should not simply
be advocating for well-crafted exceptions and limitations to copyright, but marrying
those exceptions to positive legislation to encourage (or force) the content industry,
and other culture institutions to ensure their goods and services are accessible.
Copyright exceptions are not enough in and of themselves to ensure equal access to
cultural materials.
When I began my research, my perception was that the primary obstacles to change
were the broader interest groups, primarily those with large intellectual property
holdings. This was borne out by the amount of money spent by the organizations like
the Motion Picture Association of America and companies like General Electric
fighting the Marrakesh Treaty.11 This remains my perception.
Common sense says most of these companies and organizations are not truly worried
about access to cultural materials for persons with disabilities. What concerns them is
the greater implications of so-called “users rights” gaining traction on the
international playing field. This has a great deal to do with the disruptive power of the
Internet, and the fight over patents, and a little to do with access for a discrete group
of persons with disabilities. Piracy and the developing world are specters looming in
the background of any discussion about access to cultural materials for persons with
disabilities.
This is unfortunate, because the tools the digital revolution has provided have created
new frontiers of accessibility. Access to books is just the tip of the iceberg, access to
images, to works of art, film, news broadcasts historical archives and who knows
what else are now within the grasp of persons with disabilities, provided the tools are
not locked away by copyright and anti-piracy legislation. Unfortunately, there is a
strong and well-funded lobby against any perceived liberalization of copyright and
11 A collection of articles about Private Sector actors advocating against the Marrakesh Treaty can be found on the Knowledge Ecology International (KEI) website. (People Who Oppose Robust Copyright Exceptions for Blind People (the Private Sector) http://keionline.org/opposingblind-­‐privatesector 7 anti-piracy legislation, as it is viewed as the first step on a slippery slope leading to
the eventual break-down of the intellectual property system. The narrow scope of the
Marrakesh treaty, which specifically does not include access to audio-visual
materials, is a result of fear based lobbying of private industry.
3.
My Formation as a Policy Entrepreneur.
I was given the opportunity to attend the WIPO treaty conference to establish the
Marrakesh Treaty, as a representative of G3ict.12 I have often heard that “If you like
laws and sausages, you should never watch either one being made.”13 In Marrakesh, it
was the influence of those parties not present that gave the process its “sausage
making” quality; the parties fighting the treaty who had no vested interest in its
outcome other than the slippery slope. In the end though, they did not win the day.
While the treaty does not cover as much as I would like, the mere fact of its existence
is more than I expected, and watching it being made, I was not put off by the
compromise that went into making it. Compromise rarely results in both parties
getting exactly what they want. I do not think it is the magic bullet to end the book
famine, but it’s a step in the correct direction, and marks a significant change in the
international intellectual property corpus of laws. It is the first “users rights” treaty
(all other international IP treaties expand the rights of rights-holders), and may mark a
shift in attitudes to a more access based system. It remains to be seen.
The hardest thing about my role as an agent of change, or a policy entrepreneur, or a
knowledge provider is to not be discouraged by how slowly the process of change
moves. Fighting cynicism when faced with what seems like endless resources pushing
against the position you advocate for is challenging. Sometimes the best I can do is
hide it, and say the right words. I mention this because of the DREAM network, and
12 G3ict – the Global Initiative for Inclusive Information and Communication Technologies – is an advocacy initiative launched in December 2006 by the United Nations Global Alliance for ICT and Development, in cooperation with the Secretariat for the Convention on the Rights of Persons with Disabilities at UN DESA. Its mission is to facilitate and support the implementation of the dispositions of the Convention on the Rights of Persons with Disabilities on the accessibility of Information Communication Technologies (ICTs) and assistive technologies. -­‐ See more at: http://g3ict.com/about#sthash.nEf1gd3s.dpuf 13 This quote is frequently attributed to Otto von Bismark, but it remains unclear who originally compared lawmaking to sausage-­‐making. Sausage makers resent the implication. http://www.nytimes.com/2010/12/05/weekinreview/05pear.html 8 how the support of certain other DREAM Fellows, and DREAM administrators was
crucial to my not losing heart. A support network is crucial for agents of change, even
when not working on the same issues, having another person who is facing what feels
like insurmountable odds and understand just how exhausting and disheartening that
can be, can be the difference between giving up and pushing through. Researchers
need other researchers; none of us are as good as we can be in a vacuum.
That being said, researchers also desperately need to connect with advocates and
stakeholders outside the academy. This dose of reality, the practical implications of
their research, makes the narrative they share with other academics and policy makers
more valid. My experience working with Benetech14 in Palo Alto gave me the
opportunity to put boots on the ground and do some of the work I write about.
Benetech is on the cutting edge of accessible cultural content. Benetech is the home of
Bookshare, one of the world’s largest accessible digital libraries providing service to
persons with print disabilities.
Benetech has partnered with publishers to provide accessible format books to people
in the United States. Benetech was also ahead of the curve in sharing those digital
format accessible books around the world, using those partnerships with publishers to
legally transfer files to partner organizations and disabled persons in other countries.
They were part of the coalition to bring about the Marrakesh Treaty. Benetech is also
on the cutting edge of access to cultural materials beyond books. The Diagram Center
focuses on access to images, particularly in the academic context. They do so through
metadata such as alt-text with a written description of the image, or meta-data that is
readable by special printers that can create raised images, or 3D printers.
Working in an organization that provides accessible books to users allowed me to
understand first-hand the challenges they face with unclear legislation and crossborder legal uncertainty. The most important thing I learned with Benetech about my
role as a researcher and policy entrepreneur is that whatever the intention of
legislation, if the language isn’t clear and easy to interpret, it becomes difficult to use,
14 For more about Benetech: http://benetech.org/our-­‐programs/overview/. 9 particularly for organizations that may not have the resources to employ attorneys to
advise them, much less the average user who doesn’t have any legal expertise.
4.
Tentative Outcomes/Recommendations.
Unfortunately the change I think would have the most effect for the European Union
is unlikely to be implemented any time soon. Understanding Copyright in the
European Union is a difficult task. Copyright traditionally is a territorial right15 and
this remains true in the European Union, where member states each have their own
copyright regimes. These copyright regimes, however, must exist within the
boundaries of international law, and European law, as handed down from the
commission in Directives.16 These Directives have harmonized certain aspects (e.g.
term of protection or the rental right) of copyright and related rights within Europe to
ease barriers within the common market. There has been no Directive to completely
harmonize European copyright. This patchwork of directives and shared competency
adds a layer of difficulty to legislating to open the door of accessibility.
As it stands right now, the Directive on the Harmonization of Certain Aspects of
Copyright and Related Rights in the Information Society17 offers a discrete,
permissive list of exceptions and limitations that European member states may choose
from, including an exception for persons with disabilities.18 These exceptions and
limitations do not have to be directly transposed into domestic law, but can be
implemented as the member state choses within the bounds of the 3-step test of the
Berne Convention on Copyright. 19
15 Copyright law is territorial in nature; protection only extends to the physical borders of the protecting state. Each state has developed its own laws, regulations and exceptions about and to copyright. 16 Directives freely available online here: http://ec.europa.eu/internal_market/copyright/documents/index_en.htm 17 Directive 2001/29/EC of the European Parliament of the Council of 22 May 2001 on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society, O.J. L6/70, 10 January 2002. http://eur-­‐
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML (InfoSoc Directive). 18 Id art. 5. 19 “The three step test states that exceptions must only be in “certain special cases,” it must not “conflict with the normal exploitation of a work,” and must not “unreasonably prejudice the legitimate interests of the author.” Berne Convention for the Protection of Literary and Artistic Works, Sept. 9 1886, as last revised at Paris, July 24, 1971, 828 U.N.T.S. 221 Art. 9(2) (Berne Convention). 10 Complete harmonization of copyright at the European Level would make the task of
removing the copyright barrier to access simpler, since it would only have to be
accomplished once, instead of 28 times. Alternately, the EU could issue another
Directive on copyright exceptions explicitly outlining member states obligations
regarding access to cultural materials for persons with disabilities. Dealing with
copyright barriers at the European Level. As it stands, the EU has signed the
Marrakesh Treaty (nearly a year later) over questions of whether it even had the
competence to do so. This is not an ideal situation for working on a greater variety of
cultural materials. It’s nice that cross-border exchange of books within Europe is
going forwards, but as pointed out above, cultural materials are more than books.
Legal certainty lets even the most risk-adverse non-governmental organization
operate without fear.
While seconded to Benetech, I became profoundly aware that there has been a
patchwork approach to accessible format content. I attended the Smith-Kettlewell
Video Description Research and Development Center Annual Meeting, to talk about
access to audio-visual content for people with print disabilities and discovered an area
that copyright in the EU, the US and Internationally has not adequately addressed.
Video description, captioning, and access to audio-visual content for persons with
disabilities has been addressed to a greater or lesser degree by national legislations,
but not by copyright law. This means that only a fraction of this content, mostly
content that is shown through traditional broadcast or cable television is made
accessible, with varying levels of competences. If any group or organization wishes to
use a copyright protected audio-visual work to give a person with a disability access,
they are doing so in a legal grey area, or even worse, they could be breaking the law.20
There is no EU-wide regulation on this kind of work. The US has not addressed it
specifically, although the defence of Fair Use would likely apply. The Marrakesh
Treaty went through several drafts that included audio-visual content, particularly for
education, but that was removed in the draft that became the text of the treaty.
Subtitling and captioning for audio-visual content is a simple accessibility tool that
has been around for years, but there is no international legislation, or standards for it.
11 Piecemeal application that changes from country to country, and access to content
tends to be region-blocked. The legislation surrounding subtitling and captioning does
not generally mention copyright explicitly. Captioning and subtitling tends to be
accomplished by professionals and paid for by the various producers of content.
Making accessible books has been explicitly permitted in a number of countries for
non-profit organizations working to benefit persons with disabilities. This means that
where a person with a disability wants access, they can request an accessible version
be made. When it comes to audio-visual content, this is not true. There is no explicit
exception, and many organizations do not want to risk a lawsuit. This leaves the
person who needs captions, or subtitles left with whatever the broadcasters choose to
make accessible, and with whatever quality the broadcasters choose to caption with.21
It would be good to tie captioning, subtitling, video description and other ways of
making audio-visual content accessible legislation to copyright, and vice versa. The
positive obligations (particularly in places the US where a recent court decision
decided that the internet was a “place of public accommodation under the Americans
with Disabilities Act and required Netflix to caption all of its streaming content)22
could be married with explicit permissions of exceptions and limitations to copyright.
To return to the ‘field and gate’ metaphor, one holds the gate to the field open, the
other helps you through it,. A coalition of stakeholders and advocates presenting a
uniting policy would be more effective than each individual disability group
advocating for their own special accessibility needs.
The roadblock of the large intellectual property holding organizations and companies
will remain. Unfortunately, the content industry is wracked by piracy, and are facing
sea changes that will impact the fight for accessibility. One can only hope that as their
business models change to respond to the 21st Century digital culture, exceptions and
limitation will not longer be such a scary concept. Additionally, partnerships can be
made successfully, as evidenced by the publishing industry, who have begun to
21 One only needs to Google “bad caption” to come up with examples of how bad bad captioning can be. This becomes down right dangerous when there is an emergency situation and the person needs information from the television or internet. 22 Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 202 (D. Mass. 2012). 12 partner with accessible book creators like Benetech. Fundamentally, the content
industry does not want to block access to cultural materials, they just want to protect
their own existence. If they are given the opportunity to control their content and are
reassured as to it being protected, they may be more willing to partner with different
organizations to make content accessible. Strategic partnerships with industry will
create more access than any legislation.
I do not believe that, at present, there is a “market solution” unfortunately, despite the
large number of people who want access to cultural materials. Making accessible
format materials remains expensive, even with the rise of digital culture.
Governments must foster the creation of accessible format works with copyright and
accessibility legislation working hand in glove. A broad coalition of Disabled Persons
Organizations, even broader than the one that brought about the Marrakesh treaty
would be an effective lobby. The barrier presented by copyright is only one piece of
the right to access cultural materials. It must be taken down, the gate must be opened,
but it is not enough. My research is only just beginning on how best to take the next
steps.
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