Chapter 31: Human Rights, Persons with Disabilities and Copyright
Abbe Brown and Charlotte Waelde
Introduction
Human rights, copyright, and disability: individually each of these systems has something to say about culture, cultural activity and access to culture. Collectively, what do they say about access to, and participation in, culture by persons with disabilities? And what does this suggest for the wider relationship between intellectual property (“IP”), human rights and other legal fields?
At international policy-making level, disability and human rights converged from 1994, and copyright and human rights in 2005 (or depending on the perspective taken, from 1966). It was only however in 2013 that copyright, human rights and disability came together in a potentially meaningful way in a measure dealing with access to cultural works. This was in a
Treaty concluded under the auspices of the World Intellectual Property Organization (“WIPO”).
The Marrakech Treaty to Facilitate Access to Published Works for Persons who are Blind,
Visually Impaired, or otherwise Print Disabled (“Marrakech Treaty”) facilitates the making available of literary and artistic works to people with visual impairments.
The political, legal, economic and social challenges faced by the negotiators of this Treaty echo those that have characterised disability, copyright and human rights for many years, and have also been intensified because of the bringing together of the often opposing interests from the three domains. One example, as is developed in more detail in the body of this chapter, is that in respect of a book there would be the rights of the owner of the copyright to control how the work might be copied or disseminated; the right of a person wishing to read that book to information and to take part in cultural life; the rights of authors to reward in respect of their work; and a right to property in respect of the copyright. While the copyright and human rights systems can exist in harmony, as the first and third (and fourth, if the author owns the copyright) examples suggest, they can also conflict. This is particularly so if a reader of the book has a disability, and they need to reproduce or adapt the work for it to be accessible, such as into
Braille or through the use of voice to text software.
This chapter will note the development of the disability movement and the models of disability used to shape thinking about the interface between disability and society; link this with human rights and copyright policymaking; assess the achievement of the Marrakech Treaty; and evaluate how that might pave the way for meaningful equality in relation to cultural participation and access to culture by people with disabilities as compared with their able bodied counterparts.
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The disability movement, links with human rights treaties and access to culture
The disability movement gathered momentum in the 1960s both locally and at the international level.
1 The movement was part of a general collectivisation of voices of minority groups including feminists, gays and anti-racists.
2 This disability activism shaped and has been shaped by an array of theories which seek to elucidate the rights and place of people with disabilities within and in relation to society. Prior to the 1960s, the most common way of thinking about disability was in medical terms; that disability was an affliction or personal tragedy to be cured by professionals.
3 Dissatisfaction with this medical model led to the emergence of the “social model”, a term coined by Oliver in 1981. This model moved away from a focus on the disabled individual as the subject of medical treatment, to highlight instead the disabling economic, cultural and environmental barriers that society places in the way of people with impairments. In other words, the theory posits that disability is socially constructed.
4
In the mid 2000s, this social model started in its turn to be re-thought, most particularly by two writers, French and Swain, 5 who drew on their own life experiences. What has emerged is the “affirmative model”; through which ‘disabled people challeng[e] presumptions about themselves and their lives’ 6 and seek ‘ways of being and living that embrace difference…..on our terms’.
7 The model builds on the ‘liberatory imperative of the social model’ 8 and has strong links with the disability arts movement.
9 From the legal perspective, the language and influences of the first two models in particular are evident in international, European and domestic measures linking copyright, human rights and disability, which are considered further below. The affirmative model by contrast is less apparent, partly because the thinking is still developing, and partly because the model calls for acceptance of people with disabilities on their own terms. This makes it a problematic platform from which to argue for a special rights regime, or designated rights within a more mainstream regime, such as that which was created at Marrakech.
By the 1980s, this activism had started to influence policy making on the international stage. 1981 was proclaimed by the UN General Assembly as the International Year of the
Disabled, with calls for 'Full Participation and Equality' for people with disabilities. A number of developments followed, including the adoption in 1982 of a World Programme of Action
Concerning Disabled Persons 10 and the launch of the International Decade for Disabled Persons
1983-92.
11 In the early 1990s some countries, including Sweden and Italy, argued for a new international treaty specifically aimed at giving rights to the disabled. There was however little support for this at that time as there was a view that there was already adequate provision in existing measures for persons with disabilities.
12 From the perspective of access to culture, there
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is some merit in this point. The International Covenant on Economic Social and Cultural Rights from 1966 13 (“ICESCR”) contains the right to take part in cultural life 14 and the International
Covenant on Civil and Political Rights 1966 (“ICCPR”) 15 expresses the right to receive and impart information.
16 Both rights are stated as to be delivered without discrimination as to race, colour, sex or, of possible interest in relation to disability, ‘other status’.
17 This lack of support for an issue specific instrument was, however, somewhat at odds with the social model which prevailed in respect of disability action at the time - the affirmative model was still some 15 years away.
It is thus perhaps not surprising that the 1993 Resolution on The Standard Rules on the
Equalization of Opportunities for Persons with Disabilities (“the Resolution”) was adopted.
18
Although not a binding instrument, the Resolution states there to be ‘a strong moral and political commitment of Governments to take action to attain equalisation of opportunities for persons with disabilities’.
19 In respect of culture, the Resolution exhorts States to ensure that persons with disabilities can utilise their artistic potential for their own benefit and for the benefit of the community, 20 and also that places and works of culture should be accessible to those with disabilities.
21 In the next year, 1994, similar themes were reflected in the General Comment 22 of the United Nations Committee on Economic, Social and Cultural Rights’ on persons with disabilities, and in this repeated reference is made to the Resolution. 23 The General Comment states that although there is no specific reference to disability in the ICESCR, the position of persons with disabilities is considered to be within the human rights framework (including through the reference to “other status”). The General Comment also states that the position of persons with disabilities should be protected and promoted through general as well as specific instruments and actions.
24 Finally, regarding the right in respect of cultural life, the General
Comment stresses the right to full participation, that it should be made clear that persons with disabilities has as much right as any other to access cultural venues, and that there should be elimination of communication barriers to the greatest extent possible, with reference made to talking books, adapted TV and theatre for the deaf.
25
From this strengthened base, there was much ‘behind the scenes’ activity at international level in relation to disability, although for the next few years there was little visible progress.
This culminated in 2001 in the establishment, at Mexico’s request, of a UN Ad-Hoc Committee
'to consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities’.
26 Ultimately, and following a further series of ad-hoc meetings, the text of the Convention on the Rights of Persons with Disabilities
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2006 (“CRPD”) was agreed and adopted in December of that year.
27 While the gestation period of this Convention seems lengthy, when it was actually at the negotiating table it has been said that the adoption process was one of the most successful of all international treaty negotiations, clearly modeled on the principles of participation and inclusion, demonstrating that both are achievable.
28
The CRPD draws heavily on the social model of disability.
29 The Preamble to the CRPD also links it to a more general human rights agenda:
“disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation on an equal basis with others”.
30
The CRPD sets out rights in respect of protection from discrimination, 31 accessibility
(including to culture and to information and to communication), 32 and inclusion and participation in society.
33 Similar to the other international measures discussed, the CRPD imposes an obligation on states to ensure that the people with disabilities can take part in cultural life on an equal basis with others, for their own benefit and that of society as a whole; and to ensure that there is access to materials in accessible formats. Further, and in a reminder of the possible conflicts identified at the start of this chapter, the CRPD provides that states shall take all appropriate steps to ensure that IP does not impose an unreasonable or discriminatory barrier to this.
34
As was also seen in the 1990s after the Resolution, the CRPD seemed to be a spur for further action. In the human rights field, a 2009 General Comment in respect of the right to cultural life was published which refers to the Resolution and to the CRPD. The General
Comment stresses that taking part in cultural life should be viewed as a freedom 35 to participate 36 and for cultural goods and service to be available.
37 There is stated to be a need for persons with disabilities to have access to cultural material and activities in accessible forms, with reference made to sign language and the culture of the deaf, 38 and to have access to cultural venues and monuments and to encouragement of participation in recreational activities.
39 The General
Comment also notes the statement in the Resolution that persons with disabilities should also have these opportunities for the wider enrichment of their community, as well as for their own benefit.
40 In the light of this, it is unfortunate that this General Comment does not refer to IP and the links between it and culture, particularly given the recognition given to this in the CRPD.
The General Comment does refer to the recognition within the ICESCR of the right of the
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author to benefit from the moral and material interests arising from a work, 41 but which was referred to in the introduction of this chapter. The General Comment does so, however, only by noting it to be closely related to the right in respect of cultural life.
42
There are also regional and national counterparts to these international initiatives and legislation. The focus will be placed here on Europe, which has the most developed regional human rights system, the European Convention on Human Rights 1951 (“ECHR”).
43 This includes a right, subject to some limits, to expression and information.
44 While the ECHR does not refer expressly to disability it does have a provision prohibiting discrimination on, once again, ‘other status’.
45 In addition, the Charter of Fundamental Rights of the European Union 46
(“EU Charter”) (which has a new place in the EU since the Lisbon Treaty) 47 states that discrimination on the grounds of disability is prohibited.
48 Further, the Treaty on the
Functioning of the European Union states that the Union shall combat discrimination, including on the basis of disability.
49 European Union action is stated to proceed on the social model, 50 and is presently driven by the European Disability Strategy 2010-2020.
51 This refers to participation in culture and also to copyright, including, very generally, to the potential for imposing of limits on copyright which are conferred by the Directive on Copyright and the
Information Society (“InfoSoc Directive”).
52
During the early activist period at national level in the UK, there was a focus on raising visibility of the needs of people with disabilities and in obtaining access to important services, rather than on culture specifically. For instance, a group called the Disablement Incomes Group was set up in the 1960s, much of whose work was focused on lobbying for disability benefits.
53
Progress in ensuing years saw, among many other initiatives, the emergence of the Union of the
Physically Impaired against Segregation (UPIAS), a small but highly active and political group of campaigners, 54 and the establishment of a national umbrella body, the British Council of
Organisations of Disabled People (BCODP) 55 which in turn became the UK Disabled People’s
Council.
56 The main aim of this organisation was to campaign against the institutional discrimination and prejudice faced by people with disabilities that characterised British society.
Campaigners sought anti-discrimination legislation and more engagement of people with disabilities, in the development of appropriate services.
57 The Disability Discrimination Act was passed in 1995 and the Disability Rights Commission established in 2000, and legislation was consolidated in the Equality Act 2010.
58 The Equality Act makes it unlawful to discriminate directly or indirectly against a person with a disability, to put people with disabilities at a disadvantage, including through the provision of a service (whether or not for payment).
59 This
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would cover the provision of services related to arts and culture. The UK Equality and Human
Rights Commission has issued guidance to ensure the quality of access to and enjoyment of services by all groups in society, 60 and there are interesting examples of dance companies being active in this respect, including in relation to support of disabled artists.
61
So from 1951 at European level and 1966 at international level, an increasingly sophisticated framework has developed for the recognition, protection and promotion of the human rights of persons with disabilities, within the mainstream human rights system. The framework includes a right to participate in cultural life, to access cultural venues and artefacts, to be free to make a contribution to cultural life for the benefit of the person with disabilities as well as of the community, and a recognition that IP is relevant and could be problematic. As can be seen from the language used, the social model has in more recent years proved to be an effective tool in the construction of this framework, notwithstanding challenges made by some to its legitimacy.
To complete a discussion about access to culture, and to enable resulting proposals to have the most tangible benefit, there must be most robust engagement with copyright. As a starting point, what is the link between copyright and disability, and how did it emerge?
The copyright/disability interface: Books, the blind and WIPO
In international copyright treaties, mention of disability is conspicuous by its absence: there is nothing for instance in the Berne Convention, 62 the WIPO Copyright Treaty, 63 or (perhaps unsurprisingly) TRIPS.
64 Over 30 years ago attempts commenced at international level to provide a mechanism that would result in meaningful ways in which the blind could access books through exceptions and limitations to copyright. In tandem with a greater awareness of disability in society in general, together with the galvanising of disability rights movements, the disability agenda reached the international copyright policy making stage in the early 1980s as noted above, coinciding with the UN proclaimed International Year of the Disabled. Initially both visual and auditory impairments (which would have been consistent with the General Comment in respect of cultural life) were under consideration; the key issue was what would have to be done in terms of the copyright framework to accommodate the needs of people with these impairments to enable them to access the works protected by copyright? In 1981, a Working Group created by
WIPO and UNESCO to look at these issues 65 accepted the findings of a report which concluded that captioning (which involves capturing and condensing text and making it available in written form) involved an ‘adaptation’ of the work, and did not fall under the Berne Convention’s
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‘minor reservations’ doctrine within which arrangements must fall to be consistent with the existing wider legal regime.
66
As a result, the Group abandoned their remit of addressing auditory impairment. At the related 1982 Intergovernmental Committee meeting, it was noted that there was support for finding ways to facilitate making works accessible to the blind, but that there was a concern for the legitimate interests of authors. Delegates were in favour of reproduction into Braille, but were not in favour of reproduction into large print or sound recording or broadcasting. Braille, it was reasoned, would be accessible only to the blind, while reproduction by other means would be difficult to limit to the blind, so there ’would be much danger that [the author’s] interests might be prejudiced’.
67 These concerns would remain throughout the copyright/disability negotiations as they developed over the years.
68
Against this background, in 1985 a report prepared for WIPO identified two key issues as being barriers to access by persons with disabilities.
69 These were (a) the lack of an exception or limitation in domestic laws that would allow reproduction of the works to make them accessible; and (b) the absence of a mechanism whereby accessible works once made could be distributed across borders. These problems, it was argued, could be solved by an international treaty. Little happened at WIPO to further this agenda for many years although, as noted above, much was happening elsewhere. So when the terms of the CRPD were agreed in 2006, the scene was set to enable the disability and copyright agenda to rise once more at WIPO.
70
In 2009 the World Blind Union (WBU) succeeded in placing the issue of a specific treaty containing exceptions and limitations for visually impaired persons on the WIPO agenda.
71
Despite the commitments undertaken by states in the CRPD, the negotiations were far from straightforward. Some of the issues that arose which hindered agreement included: whether or not the proposal should take the form of a Treaty or a recommendation; the types of disabilities and the rights to be included; 72 the class(es) of beneficiaries; the extent of relaxations to be provided for developing countries; the relationship to the Berne three step test; 73 the question of commercial availability; and the use of technological protection measures.
74 In December 2012 agreement was reached, after a further series of informal and special sessions of the Standing
Committee, that the matter should be considered at the Diplomatic Conference in Marrakech in
June 2013 75 . While in 2012 there seemed to be optimism that the terms of a Treaty would be agreed, that appeared to ebb in the months leading up to this conference. Some thought agreement was unlikely to be achieved and if it were, it would be on Treaty wording that was impossible to operate in practice and which would bring little benefit to the blind. Others
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thought that agreement must be reached because: ‘members will feel pressure to do whatever it takes to
conclude a treaty because whoever stands in the way of this effort for blind people will be branded as a villain.’ 76
‘Miracle at Marrakech’ 77
Against this background of established and unresolved conflicts, came a ‘Miracle at Marrakech’.
On 30 June 2013 the treaty was finalised.
78 Contrary to expectations, the majority opinion is that what has emerged is a treaty that can work in practice (subject to domestic implementing provisions) and one that has the potential to make a difference to the lives of visually impaired people.
79
The preamble emphasises first the link between disability and human rights:
Recalling the principles of non-discrimination, equal opportunity, accessibility and full and effective participation and inclusion in society, proclaimed in the Universal Declaration of Human Rights and the
United Nations Convention on the Rights of Persons with Disabilities 80
The preamble then recognises the importance of copyright protection:
Emphasizing the importance of copyright protection as an incentive and reward for literary and artistic creations and of enhancing opportunities for everyone, including persons with visual impairments or with other print disabilities, to participate in the cultural life of the community, to enjoy the arts and to share scientific progress and its benefits 81
The preamble roots the Treaty in the social model of disability:
Aware of the barriers of persons with visual impairments or with other print disabilities to access published works in achieving equal opportunities in society, and the need to both expand the number of works in accessible formats and to improve the circulation of such works 82
Whilst proceeding to uphold the interests of both authors and of rightholders:
Recognizing both the importance of rightholders’ role in making their works accessible to persons with visual impairments or with other print disabilities and the importance of appropriate limitations and exceptions to make works accessible to these persons, particularly when the market is unable to provide such access 83
Recognizing the need to maintain a balance between the effective protection of the rights of authors and the larger public interest, particularly education, research and access to information, and that such a balance must facilitate effective and timely access to works for the benefit of persons with visual impairments or with other print disabilities 84
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The Marrakech Treaty seems, in other words, to be an outcome that represents a genuine balance among the various stakeholder interests represented in the potentially disparate domains of copyright, human rights and disability. In terms of content, the Marrakech Treaty requires
States to introduce limitations and exceptions to facilitate the reproduction, dissemination and making available 85 of literary and artistic works 86 in accessible formats to beneficiaries, defined as people who are blind, have a visual impairment which cannot be improved or who are unable to hold or manipulate a book to read it.
87 The Treaty also allows for cross border exchange of works in accessible format via a system of authorised entities 88 thus eliminating costly duplication in effort, and holding out the possibility of access by those in developing areas countries to accessible format collections from elsewhere. Taking the perspective of people with disabilities, one could make some challenges; barriers still remain, notably in terms of the focus on visual impairment. Another possible point is that it is only the authorised entity which will have the right to send an accessible copy to another jurisdiction; however, the copy can be sent directly to a beneficiary rather than via an authorised entity. But how many beneficiaries are likely to want to send accessible works across borders? A point for further monitoring.
On 28 June 2013 there were 51 signatories to the Treaty, which comes into force three months after 20 eligible parties have deposited their instruments of ratification or accession.
89
But to move on from international achievement, much depends on the next stage - domestic implementation of the provisions. Some positive indications in this respect can be taken from developments in the EU and in the UK.
Copyright, human rights and disability at European and domestic level
Within the EU, the Copyright Directives do not mention disability – with the notable exception of the Infosoc Directive from 2001.
90 This provides in its recitals:
(43) It is in any case important for the Member States to adopt all necessary measures to facilitate access to works by persons suffering from a disability which constitutes an obstacle to the use of the works themselves, and to pay particular attention to accessible formats.
This is reflected in the Articles of the Infosoc Directive as permission to provide an exception or limitation in national law for: uses, for the benefit of people with a disability, which are directly related to the disability and of a noncommercial nature, to the extent required by the specific disability 91
This measure was mooted in the first proposal for the Infosoc Directive in 1997.
92 While
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there seems nothing in the preparatory documents that would explain its inclusion in a Directive at this time from the IP perspective, as noted above the 1990s marked a time where many advances had been made at international and domestic levels in relation to the place of disabled peoples in society. Yet although the InfoSoc addresses exceptions (and the ongoing recognition of this by the EU was noted above in respect of the Disability Strategy), InfoSoc does not embrace fully these approaches; there is no language of rights in relation to disability. Further, the influence of both the social and medical models of disability is evident in the references to
obstacles to the use of works, and that persons suffer from disability (emphasis added). Looking back now to this after the Marrakech Treaty, it is evident the extent to which the disability rights movement has influenced and shaped international policy making over the years.
Despite the historic absence of an international or detailed European framework , some countries have included some concessions for people with disabilities, but the scope as between different jurisdictions has differed.
93 For instance in the UK, as a result of joint lobbying by the publishing industry, the Royal National Institute of Blind People, and the National Library for the Blind (again, note the focus on visual impairment), an exception to copyright was introduced in the Copyright (Visually Impaired Persons) Act 2002.
94 This amended the Copyright Designs and Patents Act 1988 (“CDPA”), to the effect that accessible copies of a literary, dramatic, musical, or artistic work may be made by or for visually impaired persons without the consent of the copyright owner within specified parameters.
95
An important widening of approach in the UK in respect of disabilities covered came in the wake of the Hargreaves Review ‘Digital Opportunity: A review of Intellectual Property and
Growth’ which reported in May 2011.
96 The UK Government signaled its intention to introduce an exception to allow persons with all types of disabilities to access all types of works, if there is not an accessible copy on the market.
97 The draft regulations, which were published on 31 July
2013 and at the time of writing are part of a technical consultation process, seek to do just that.
It should be noted that it is specifically stated that these regulations do not seek to implement obligations under the Marrakech Treaty, and that if further change is necessary in the UK there will be a further consultation process.
98 The definition of disabled person in the regulations includes those with physical and mental impairment 99 and the works covered are ‘copyright works’, 100 both wider than the Marrakech Treaty focus. The draft regulations include examples of the types of reproduction and dissemination activities that would be permitted, both on behalf of people with disabilities on an individual basis, and by an educational establishment or not for profit organisation for use by people with disabilities more generally. The examples include
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making a copy of an audio-visual work including subtitles; and performing a literary work and producing a sound recording.
101
Yet one might still argue that the permitted exceptions are relatively narrow given the increasingly creative ways in which technology can be used to help solve accessibility problems.
More robust exceptions (if one accepts momentarily that there are not to be rights) are required.
What of formats such as the open standards developed by the Digital Accessible Information
System (DAISY) to enable e-books to be more accessible?
102 Or the wide range of work done with communicative and assistive technologies at institutions such as CALL Scotland, including
Word-Talk, a speech to text plug in which works with Microsoft products?
103 Use of other senses can be a valuable solutions to visual impairments, for example through a tactile exhibition.
An example is a project by the British Museum which made replicas of the Parthenon marbles
(in which the copyright has expired) more accessible through reducing the size and displaying them at an accessible height; 104 but this could (still) not be done in respect of more contemporary works, such as, say the Angel of the North 105 in Gateshead in England or the
Concrete Cows from Milton Keynes, 106 without the consent of the copyright owner.
107
(More) [U]nfinished business?
The discussion above shows just how far policymaking linking copyright, human rights and disability has advanced over the past 30 years in the field of arts and culture, how conflicts have been noted and considered, and how effective the theories developed by the disability activist movement have been in influencing the shape of that policymaking. Yet there are significant further unresolved issues between these fields which raise further conflicts. These issues include:
 tensions that arise when copyright is considered a human right, and between the rights of the access seeker and the moral rights of the author (quite apart from the copyright regime);
 what is meant by participation in culture (as opposed to accessing it) and what does that mean for people with disabilities;
 the perpetuation of perceptions of people with disabilities as ‘other’ and the condemnation by some disability rights activists of the human rights approach to disability; and
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 questions over the practical enforceability of the rights of persons with disabilities when seeking access to and participation in culture.
Copyright as a human right, moral rights and access to culture
So far much of the discussion has been around disability and human rights, disability and copyright, and disability, human rights and copyright. Yet, there is a further interaction between copyright and human rights. Is copyright a human right, or a means of delivering a human right?
And what barriers might the perspective taken create in respect of those seeking access to culture for people with disabilities?
As noted above, the ICESCR, in the same provision as it sets out the right in respect of cultural life, enumerates a right to moral and material interests on the part of the author.
108 There have been significant arguments, as have been explored elsewhere in this collection, about the extent to which this creates a human right to IP.
109 In contrast, it has been argued that this right could support a different approach to IP, one consistent with wider sharing and lesser control; a strong argument in this respect is that this provision is part of the same article as the right to take part in cultural life.
110 This moral and material benefits right was considered in a General
Comment from 2005, with the right and Comment also considered in the cultural life General
Comment of 2009.
111 The 2005 General Comment considered that this right was quite distinct from copyright.
112 It applied only to individual, not corporate, authors or copyright owners.
113 It is also made clear that the same rights apply to authors with disabilities, and that proportionate additional steps could be taken to fulfill these rights.
114 No other references are made to disability. More generally, however, the General Comment makes it clear that a balance must be struck between the rights of the author and the public interest in having broad access to a work
(including through the right to cultural life), that the right is dependent on other rights including rights to expression and cultural participation 115 and that states must prevent steps which would, say, increase the cost of access to books and learning.
116 This General Comment suggests that the existence of the right of the author does not enhance or supplement the barrier which copyright can provide to access to culture by persons with disabilities.
However, a different position is suggested from the European perspective, as the ECHR includes a right in respect of property. This is stated to be capable to being held by companies, 117 and has been found to cover IP.
118 Further, there is a provision in the EU Charter that
’intellectual property shall be protected’.
119 Yet when this right has formed part of IP actions along with other human rights (pursuant to procedures which are discussed in more detail below), the right in respect of property has not meant that the interests of the copyright owner
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must prevail over the rights of others. It has meant merely that rights in respect of property must be considered alongside the rights of others involved in a dispute (say to expression of a person seeking to use a copyright work 120 or in respect of a private life of a person about whom a copyright owner seeks details so they can raise an infringement action).
121
A greater tension, or at least one less apparently amenable to resolution in individual cases, involves moral rights. Obligations for states to protect the rights of the author, quite apart from the ultimate or ongoing ownership of the copyright in the work, are set out in article 6bis of the Berne Convention.
122 This is also reflected in the General Comment regarding moral and material interests of the author, where a distinction is drawn between IP and moral rights 123 and the strong link between a creator and its work is recognised.
124 One example of the conflicts which could arise is in respect of the right to integrity in the UK copyright legislation.
125 This gives to the author the right not to have work subjected to derogatory treatment which is prejudicial to the author’s honour or reputation. Would putting a work into Braille, or adding sub-titles be caught by the right of integrity? Leading cases in the UK suggest that it can be difficult to establish a breach of the right, even in the context of cases where there has been no strong argument in favour of the changes being made to the work, such as would be available here.
126 An opportunity to consider this seems to have been lost in the UK as the draft regulations discussed above (and which includes a provision that would prohibit contract overriding the limitations which are imposed on the power of the copyright owner) 127 do not mention moral rights.
At international policy level, and in the academy, moral rights have received some
(limited) attention in respect of questions of disability and cultural access, 128 and as noted above the position of authors played an important role in the movement away from addressing hearing impairment at WIPO. It could be argued that this is reflected in the Marrakech Treaty’s definition of accessible format: the integrity of the work must be respected, “taking due consideration of” changes needed to make it accessible.
129 But this is still vague. Will there now be an ongoing alliance between author’s groups and publishers, both objecting to the new regime on the basis of moral rights? Or will the new attitudes which ultimately permeated through the delegates at Marrakech enable all stakeholders to move together, individually and collectively, to constructive and pragmatic approaches? This would avoid emergence of the possible conflict deep within article 15(1) ICESCR, and support the calls for balance within the respective
General Comments.
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Participation in culture as a human right: outcomes for people with disabilities.
The optimistic attempt above to dismiss conflicts as merely theoretical, or open to a practical solution, cannot continue with this second point: what does participation in culture mean? The
CRPD exhorts states to ensure that people with disabilities have access on equal terms to cultural materials including television programmes, film and theatre, and to places of cultural performances and services such as theatres, museums and cinemas.
130 The Marrakech Treaty takes the first of these further through facilitating access to cultural materials in the form of literary and artistic works, at least for those classes of beneficiaries with impairments as defined in that treaty.
But what of a person with disabilities who wishes to participate in cultural performance, as opposed to accessing the venue to view the work of others?
131 There are performers with disabilities in the UK dance sector – for instance, Caroline Bowditch 132 and David Toole 133 both of whom are well-known choreographers and dancers. Finding actors with disabilities present in mainstream performance is challenging 134 although not impossible – Peter Dinklage and
Warwick Davis being examples. There are also a number of inclusive companies throughout the
UK working on a variety of projects such as Hijinx and Graeae Theatres.
135
The CRPD also requires that states ensure that persons with disabilities can take part on an equal basis in recreational, leisure and sporting activities, and that persons with disabilities should have access to services provided by organisations in these areas.
136 Yet nothing is said in the CRPD about participation in cultural performance as an art form. This raises complex questions. If participation of persons with disabilities in sporting activities is to be promoted as it is by the CRPD, why is participation not to be promoted in cultural performance? Is cultural performance considered a less worthy activity than sport? But what, in any event, would a right to participate in cultural performance actually mean? It could hardly mean that, say, a dancer with disabilities could demand a place in a mainstream ballet company. But it could mean that a disabled dancer should be treated on an equal basis as her non-disabled peers when it comes to deciding who should be a member of that ballet company. But decisions on who becomes a member of the ballet company are likely to turn on who the audience want to see. Using rights of participation to challenge these may interfere too much with private commercial autonomy.
And what about access to funding for disabled people regarding appropriate services to support cultural performance? A right which is also missing from the CRPD?
137 Commentators on the
General Comment in respect of cultural life have noted that its wording does not refer to the role of the market in the production of cultural goods.
138 Human rights instruments impose
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obligations on states, and in times of austerity, there may be less private funding available and thus more need for support from the state. The two are intertwined. The General Comment does indeed provide that states should take a range of steps, including financial measures, to realise the right in respect of cultural life:
Granting assistance, financial or other, to artists, public and private organizations, including science academies, cultural associations, trade unions and other individuals and institutions engaged in scientific and creative activities; 139
Some Governments stress the importance of the economic impact of cultural activity, 140 and there have been some notable funding streams dedicated to cultural activity by artists with disabilities: the Unlimited programme of the Cultural Olympiad in the UK in 2012 being an excellent example. Nonetheless, persons with disabilities are likely to face challenging times in obtaining public funding to support their performance initiatives. Claims by disabled artists would have to take their place with other claims by equally entitled individuals. All will fight for their share of a smaller pot.
If one approaches the question from the requirement of non discrimination, one could take a different slant. The General Comment from 2009 confirms once again that the requirement that there be no discrimination on “other status” covers disability.
141 It also provides that s tates could adopt special measures to “attenuate or suppress conditions which perpetuate discrimination”, provided they are reasonable, objective and proportionate and, exceptionally, permanent, with the example provided relating to sensory impairment and health.
142 Similar arguments can be supported by the EU Charter.
143 One could argue that there is a long standing deficit in the appropriate funding support for performance by people with disabilities and so additional funding support should be accorded at least for a period if not until the market for the provision of services regarding performance by persons with a disability has become more robust. Once again, such arguments would have to take their place beside claims made by those equally entitled in other respects, resulting in an intensely tricky balancing act for states.
144
The CRPD and the Marrakech Treaty perpetuate the perception of people with disabilities as ‘other’ and the use of a rights based approach
In respect of the last conflict, the argument just developed is based inherently on special treatment for persons with disabilities and the use of human rights. Yet this argument, and indeed the CRPD, can be criticised as an instrument that perpetuates the position of persons with disabilities as “other”, as not part of the mainstream. The CRPD has its base in the social
15

rather than the affirmative model; some might also consider it to be incorrectly based in the language of “rights”. Does the creation of a special regime or use of a particular argument enable or marginalise? And does or should this discussion proceed on the basis of principle and theory, or on what can be and has been achieved?
Some disability activists argue that an approach based on law and rights leads to a professionalisation of disability rights, the beneficiaries of which are the ‘people who work in the rights industry’.
145 There is also some scepticism about the practical enforceability of a rights based approach: ‘Having legal rights does not mean that they will be enforced.’ 146 This last point is developed further below, but from a different stance, these arguments seem to stem from a wider concern; that of a loss of influence and control by people with disabilities over organisations they founded to pursue their interests, in favour of groups who: ‘talk the talk of the disabled people's movement’ 147 but are ultimately unaccountable to them.
This is an uneasy tension that may become more marked as access to publicly funded resources becomes increasingly challenging.
Others would argue that human rights can be used as a lever for advocacy:
A human rights approach implies legal reasoning. ... The human rights approach implies, thus, among other things, the creation of a legislation which shall give persons with disabilities and their organisations the lever to ensure that there is effective advocacy for their rights. ... Implicit in any application of the human rights’ strategy is structural transformation, involving redistribution of economic and political power. As in the struggle against racism, advocates and policy-makers chose to combat discrimination
against persons with disabilities by reference to human rights. 148
Indeed, use of human rights argument to support the interests of visually impaired people was evident in the clamorous discourse surrounding the negotiations for the Marrakech Treaty.
Further, the CRPD, human rights approach and social model of disability have laid the mechanisms for structural change and redistribution that the Marrakech Treaty suggests. One should be careful to ensure, however, that the success of this model does not mean that others are disregarded. In the UK in the light of changing public funding imperatives, the Arts Council has rethought its approach to disability and to art made and performed by other minority groups, and taken a quite different approach to that suggested above. It is an approach rooted in the affirmative model of disability. This is articulated in its Creative Case for Diversity as ‘a reimagining of the Arts Council’s approach to diversity and equality, setting out how these areas
16

can and should enrich the arts for artists, audiences and our wider society.’ 149 The strategy is one that is based on the quality of the art rather than any moral, ethical or legal imperative:
‘The day will have come when you are an artist, whether you are a black artist? I don’t want to hear that.
Disabled artist? I’m an artist. That’s it. When we achieve that, then we will have cultural integralism and what is truly important is looking at what people creatively do. That should be the aim.’ 150
The challenge, given the base on which there have been developments in disability and culture field, is that this does not call for the dismantling of barriers or for any form of special treatment – but rather acceptance of art made by people with disabilities ‘on our own terms’.
This approach has been keenly welcomed by some in the disability movement:
While the affirmative model speaks to participation in the arts Charity depictions show disabled people as ‘pathetic, powerless, unable even to deflect an intrusive gaze. This had been the dominant representation of disabled people for centuries until we started to take control and depict ourselves, our lives and our circumstances for ourselves. That is one reason why disability arts have been so important:
it gave us back our dignity’.
151 .
How can these models combine, or work in tandem, to support thinking about policymaking where affirmative action may be required on behalf of people with disabilities?
And where should this be done? This practical point raises the final tension.
Practical enforceability of the rights of persons with disabilities when seeking access to and participation in culture.
What practical difference does a human rights approach to disability and culture make? What additional opportunity is available for a disabled dance artist who desires to be engaged by a mainstream dance company? Or who wishes to establish their own company? Or seeks funding to develop material for a public performance? Or wants to listen to a book in a new format?
While the discussion above has noted that the rights generally cannot be limitless and will often have to be balanced against clamorous claims by those equally entitled for different reasons, there must be some practical outcomes that can be suggested lest, as feared by the disability activists, human rights becomes no more than empty rhetorical promises.
As noted, the Treaties and Conventions themselves place obligations on states – not on individuals. In terms of states fulfilling these obligations the CRPD has monitoring and
17

compliance frameworks, in additional to states’ reporting responsibilities 152 through the
Committee on the Rights of Persons with Disabilities.
153 There is also an opportunity through an optional protocol for individuals or groups to make complaints at international level if it is considered that a state (which has ratified the protocol) has not met its obligations, and individuals or groups are victims of this violation.
154 The ICESCR, with its rights in respect of sharing in cultural life and requirement of non-discrimination, has monitoring frameworks 155 as has the ICCPR, which is important here in respect of the right to expression.
156 Both treaties also have protocols, 157 but there are fewer members of these, 158 and notably the UK is not a member. 159
The international monitoring framework and the opportunity for individual or group applications where there are relevant memberships could form part of an organised long term campaign to require greater attention to be paid by states to access to culture, and participation in its creation, by people with disabilities. This would require significant commitment and energy, not to say resource – but the commitment to the Marrakech Treaty has shown that this is possible. However, investigations take years, and the outcome will not require that states deliver a particular solution to an individual problem, rather that the states review its conduct in a particular field. It should also be borne in mind that no complaints or investigations have (yet) been made which are relevant to access to culture (be that to works themselves, or to the opportunity to participate in their generation).
So at international level, looking to human rights will not lead necessarily to persons with disabilities and their supporters being enabled to develop as they might wish. More opportunities exist at European level, particularly given the opportunity for individuals to raise actions against states at the European Court of Human Rights (“ECtHR) once they have exhausted national remedies.
160 Fundamental rights questions can be explored at the Court of Justice when it considers interpretation of relevant EU legislation.
161 At national level in the UK, complaints in respect of provision of services could be raised under the Equality Act 2010, and if an access seeker has proceeded to convert the work into a new format, an action for copyright infringement could be raised against them under the CDPA. In both these actions, reference could then be made to human rights. This is because courts in the UK jurisdictions must, pursuant to the Human Rights Act 1998 (“HRA”) ensure that so far as possible decisions are made which are consistent with Convention rights.
162 In this context, this would include the
EHCR rights to freedom of expression, to property and the prohibition on discrimination in the
ECHR. No direct application can be made to court in the UK for a breach of human rights.
18

Developing the possible scenarios, a person sued for copyright infringement might involve the breadth of exceptions to copyright in the CDPA which would assist people with hearing impairments.
163 This case might ultimately be heard at the ECtHR. A reference could also be made to the Court of Justice regarding the relation between permitted exceptions to copyright (say, ones which went wider that the proposed regulations discussed above, and which engaged more with accessible standards) and the extent to which this is consistent with the permitted exceptions in the InfoSoc Directive. In considering this, the Court of Justice would have also regard to provision in the EU Charter that there shall be no discrimination on grounds of disability. In respect of greater participation in dance, if a Local Council or an arts company which offers the service of a dance class does not offer dance classes to people with disabilities, a court action could be raised under the Equality Act, which could ultimately lead to an application to the ECtHR, or to the Court of Justice regarding interpretation of underlying Directives.
Even though there may be opportunities, the outcome and practical benefit is difficult to predict. There have been cases at the ECtHR involving disability, 164 but there have been no cases at the Court of Justice or its predecessors or ECtHR considering the relationship between copyright and disability, or disability and access to culture. At national level, there have been no copyright, access to culture and disability cases in the UK. In copyright based cases, what is likely is a proportionate outcome balancing the relevant rights (and any limits on them, such as the limits on freedom of expression in article 10(2) ECHR); 165 and the facts. Indications of how this might be done can be taken from a growing body of case law from the Court of Justice, the
ECtHR and national courts in the UK arising out of the potential for clashes between IP and human rights, which was referred to above in the discussion of another conflict.
166 The courts have, save in rare cases, found that regard to human rights could not lead to an outcome which differed from that which would have been reached by regard only to IP law.
167 In terms of the
Equality Act 2010, what is reasonable will depend on the facts, and is likely to be very limited if there is little funding available, and, say, insufficient awareness by some providers of dance services as to ongoing best practice in working with dancers with disabilities, at all levels of expertise.
168
The amount of detail required to provide an overview of enforceability in respect of human rights regarding access to and participation of culture makes clear a basic truth. The creation of a human right, or a treaty working within a rights framework, does not mean that one can require and expect immediate action. Opportunities do exist, and if activists fight and win a case such as one of those proposed, this would have an immediate impact on those involved in a
19

dispute; it would also send a message to the wider copyright owning world and to those involved with cultural funding and leadership. As was argued in the preceding section, human rights can be a tool; they are not the only tool, but they are one worth using. The Marrakech Treaty is a key example of this; it is also a significant milestone in the recognition of disability in the human rights and copyright sphere. Perhaps now is the time for a new approach to be taken to what is really meant by practical enforceability lest human rights become purely of rhetorical value.
Conclusions
Distinct bodies of law exist - human rights, copyright and disability. Legal instruments relevant to each of the fields are enforced and advanced in different fora. None of them have created a means of ensuring that a copyright owner must respect the rights to information and to share in cultural life (an IP and human rights conflict) of a person with a hearing impairment seeking to enjoy a radio programme in a new way (an IP, human rights and disability conflict), or that persons with disability have an equal opportunity to participate in dance (a disability conflict).
This is a reminder that valuable discussion of the relationship between IP and human rights exists within a wider legal framework and in a highly practical context. A new, appropriate, equal, workable relationship needs to be created between the three fields. Now is an excellent time for action to be taken. The Marrakech Treaty is a start and not an end. It has marked a real, and important, moment in time; human rights rhetoric meshed with instrumental models of disability have combined to help to construct a persuasive narrative – that copyright should yield, in a measured way, in favour of broader public interest concerns. The needs of people with disabilities and their human rights were recognised on the international policy-making stage as being at least of equal weight to the interests of copyright right holders. Now the other challenges facing those with disabilities as they juxtapose with the copyright framework should be brought to the fore (including moral rights), along with the means for removing the barriers to participation. This momentum created at Marrakech needs to be built upon to recognise and support all types of disabilities and all forms of culture within the copyright/human rights framework.
Going forwards, careful thought needs to be given by disability activists and their supporters as to how the disability narrative should be constructed to support further developments. As support for the affirmative model grows, it should not be forgotten that human rights rhetoric is a tool and a lever, and, used wisely, is a valuable one, as is the instrumental nature of the social model of disability; casting these aside may not lead to the
20

ultimate outcomes that would make a real and tangible difference to the lives of people with disabilities.
Conflicts abound in this field – some are recognised, some, as has been shown, are far more opaque. The start of legal and practical means of enabling these to be managed lies in embedding the word and spirit of the CRPD within international copyright treaties, domestic copyright laws and cultural policy. This is a worthy goal; and an important part of the ongoing discussion of the relationship between human rights and IP.
1 D Frum, How We Got Here: The '70s (Basic Books, New York, 2001) pp. 250–251.
2 A. Hendriks, ‘UN Convention on the Rights of Persons with Disabilities’ European Journal of Health Law 2007 14(3)
273-298, 274
3 For a history of disability in the 18 th century see D Turner Disability in Eighteenth-Century England. Imagining Physical
Impairment (Routledge, Oxford, 2012); for disability and comedy in the 18 th century see S Dickie Cruelty & Laughter
Forgotten Comic Literature and the Unsentimental Eighteenth Century (University of Chicago Press, Chicago, 2011).
4 C Barnes and M Oliver `Disability Rights: Rhetoric and Reality in the UK', Disability and Society, (1995) 10(1) pp.
111-116.
5 J Swain and S French, ‘Conclusion: Some Reflections on Key Questions’, in J Swain and S French (eds) Disability on
Equal Terms (Sage ,London, 2008)
6 . Ibid p 185
7 . Ibid p 185
8 J Swain and S French ‘Towards an Affirmation Model’ Disability and Society 2000 15(4), 2000, pp. 569–582; J Swain and S French ‘Affirming identity’ in J Swain and S French (eds) Disability on Equal Terms (Sage: London 2008) p 75.
9 See C Cameron ‘Disability Arts from the social model to the affirmative model’ Parallel Lines (2011) available at http://www.parallellinesjournal.com/article-from-social-model.html#f16
10 Resolution 37/52 of 3 December 1982,
11 Resolution 37/53 of 3 December 1982; see also website http://www.un.org/esa/socdev/enable/disunddp.htm
12 See R Hurst, ‘Disabled Peoples’ International: Europe and the social model of disability’ in C Barnes and G
Mercer (eds) The Social Model of Disability: Europe and the Majority World (The Disability Press, Leeds, 2005) 69; UN
Enable, ‘Historical Developments Leading to a New Convention’ http://www.un.org/disabilities/default.asp?id=222 ; and A O’Reilly, ‘A UN Convention on the Rights of Persons with Disabilities: The Next Steps’ Disability World (2003) http://www.disabilityworld.org/01-
03_03/news/unconvention.shtml
13
14
15
003 UNTS 3
Article 15(1)(a) ICESCR
999 UNTS 171
16 Article 19 ICCPR
17 Article 2(2)ICESCR, article 2(1) ICCPR
18 Adopted by the United Nations General Assembly, forty-eighth session, resolution 48/96, annex, of 20 December
1993 (“ the Resolution”)
19
20
21
Resolution, Recital 14
Ibid, Rule 10(1)
22
Ibid, Rule 10 (2)
the means by which the United Nations expresses its interpretation of human rights provisions, for more details and access see http://www2.ohchr.org/english/bodies/cescr/comments.htm
23 General Comment No. 5 (1994)
24 Ibid, paras 5 and 6
25 Ibid, paras 37,38, 39
21

26 By Resolution A/RES/56/168. General Assembly of 19 December 2001
27 At the Eighth Session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on
Protection and Promotion of the Rights and Dignity of Persons with Disabilities
14 - 25 August and 5 December 2006; 2515 UNTS (3) (“CRPD”)
28 Taken from Statement by Louise Arbour, UN High Commissioner for Human Rights, General Assembly Ad Hoc
Committee, 8th session, New York, 5 December 2006; for discussion on the CRPD and its history, see K.
Guernsey, M. Nicoli and A. Ninio, Convention on the Rights of Persons with Disabilities: Its Implementation and Relevance for
the World Bank (World Bank, Washington, 2007)
29 See eg Preamble y CRPD, articles 1 and 8 CRPD
30 Preamble e, CRPD
31 Preambles (c) and (h), articles 2, 3(b), 4(1) and 5, CRPD
32 Preamble (v), article 9, and article 4(h) and 21 (addressing information) and article 30(b) (in respect of culture),
CRPD
33 Article 3(c) CRPD
34 Article 30(2) CRPD
35 General Comment No. 21 (2009), para 6
36 Ibid para 15
37 Ibid, para 16
38 Ibid, para 31
39 Ibid, para 31
40 Ibid, para 30
41 Article 15 (1)(c) ICESCR
42 General Comment No. 21 (2009), para 2; this right is considered further below and is the subject of its own
General Comment from 2005 (to which reference is made in General Comment No. 21 (2009) in paras 4, 9)
43
44
45
213 UNTS 222
Article 10 ECHR.
Article 14 ECHR
46 OJC 303/01 14 December 2007
47 Treaty of Lisbon 2007/C. OJ 306 17 December 2007, article 1(1)(a) and article 8. Note also that the EU will join the ECHR, for details see http://hub.coe.int/what-we-do/human-rights/eu-accession-to-the-convention
48
49
Article 21 EU Charter
50
Articles 10 and 19 Treaty on Functioning of the European Union Consolidated Version OJ C 115/01 9 May 2008
See ETTAD, ‘Disability Legislation in the European Union’ webpage http://uk.ettad.eu/understandingdisability/disability-legislation-in-the-eu
51 Accessible via http://ec.europa.eu/justice/discrimination/disabilities/disability-strategy/index_en.htm
52 Ibid, Article 2 and note 12 therein
53 See discussion in C Barnes and G Mercer ‘Theorising and Researching Disability from a Social Model Perspective’ in C Barnes and G Mercer (eds) Implementing the social model of disability: theory and research (The Disability Press, Leeds,
2004)
54 UPIAS Fundamental Principles of Disability (Union of the Physically Impaired Against Segregation, London, 1976)
55 By 2000 it is said to have organisations representing over 400000 disabled people. http://www.ukdpc.net/site/
56 See http://www.ukdpc.net/site/
57 C Barnes, ‘Disability Activism and the Price of Success: A British Experience’ Intersticios: Revista Sociológica de
Pensamiento Crítico 007 1(2) 1-29
58 Which itself implemented the EU Equal treatment directives:see Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation OJ L 303 2.12.2000 16-22;2000/43/EC implementing the principle of equal treatment irrespective of race or ethic origin OJ L 180 19.7.2000 22-26;
2006/54/EC on the implementation of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) OJ L 204 26.7.2006 23
59 Sections 13(4), 15, 19, 21, 29 Equality Act 2010
60 See Services, Public Functions and Associations Statutory Code of Practice, section 3.41 http://www.equalityhumanrights.com/uploaded_files/EqualityAct/servicescode.pdf
61 See eg Shape, ‘Access Guidelines for Big Dance Partners’ http://www.bigdance.org.uk/user_content/files/Updated%20Access%20Guidelines%20for%20Big%20Dance.pdf and Youth Dance England, ‘Dance Within and Beyond Schools’
22

http://www.yde.org.uk/documents/Publications/Dance%20In%20and%20Beyond%20Schools_An%20essential%
20guide%20to%20dance%20teaching%20and%20learning.pdf
.
62 Berne Convention for the Protection of Literary and Artistic Works 1886 as revised S Treaty Doc No. 99-27
63 WIPO Copyright Treaty 1996 2186 UNTS 121
64 Agreement on Trade Related Aspects of Intellectual Property Rights, Annex 1C to the World Trade Organization
Agreement 1869 UNTS 299
65 The Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works
Protected by Copyright, (Paris 25-27 October 1982), report, Report d 1V, published 1985 in conjunction with that of ensuing Intergovernmental Committee: see Executive Committee of the International Intergovernmental
Committee of the Union for the Protection of Literary and Universal Copyright Convention on Artistic Works
(Berne Union), Twenty-Fourth Session Sixth Ordinary Session of the (9th Extraordinary) Committee of the 1971
Convention PARIS (17-25 June 1985) B/EC/XXIV/10 IGC/VI/11, Paris, 12 March 1985.
66 For more on other minor reservations and revisions in 1948 and 1967, see Standing Committee on Copyright and
Related Rights, Nineteenth Session Geneva, 14-18 December 2009, Study on the Limitations and Exceptions to
Copyright and Related Rights for the Purposes of Educational and research Activities in Latin America and the
Caribbean, SCCR/19/4, 30 September 2009, at para 1.1.1.; M Ficsor, ‘The preparation of a WIPO instruments/treaty on the exceptions or limitations for the visually impaired in the light of WIPO/UNESCO Model
Provisions on the same Adoped in the “guided development” period’ Fordham IP conference April 2013 http://fordhamipconference.com/wp-content/uploads/2013/04/Panel-4B_Ficsor.pdf
, p13, para 20
67 Executive Committee of the International Union for the Protection of Literary and Artistic Works (Berne Union)
Paris (17-25 June 1985) B/EC/XXIV/10, para. 12, and p. 3 of ANNEX I.
68 For insightful overview and collection of notes in respect of early negotiations, see M Ficsor, ‘The preparation of a WIPO instruments/treaty on the exceptions or limitations for the visually impaired in the light of
WIPO/UNESCO Model Provisions on the same Adoped in the “guided development” period’ Fordham IP conference April 2013 http://fordhamipconference.com/wp-content/uploads/2013/04/Panel-4B_Ficsor.pdf
69 W Noel, ‘Copyright Problems Raised by the Access by Handicapped Persons to Protected Works’,
IGC(1971)/VI/11 - B/EC/XXIV/10 ANNEX II, page25-26;further information about this and links to it in more accessible formats, via http://keionline.org/node/644
70 European Commission established a stakeholder forum to examine issues of access by the blind to cultural works, pursuant to European Commission, ‘Communication: Copyright in the Knowledge Economy’ Brussels, 19.10.2009
COM(2009) 532 final, which notes that, despite the CRPD only 5% of books were available in formats accessible to the blind; exceptions and limitations in Member State legislation are piecemeal and not conducive to cross-border trade; and that technical protection measures may cause problems for changing formats. However, it is not clear whether this stakeholder forum has been constituted, as there appears to be no publicly available information.
71 The WBU persuaded Brazil, Ecuador, and Paraguay to table a proposal for a WIPO Treaty for Improved Access for Blind, Visually Impaired and Other Reading Disabled Persons at WIPO in 2009, this was debated in 2010:
Standing Committee on Copyright and Related Rights, Eighteenth Session, Geneva, 25-29 May 2009, Proposal by
Brazil, Ecuador and Paraguay Relating to Limitations and Exceptions: Treaty Proposed by the World Blind Union,
SCCR/18/5, 25 May 2009.
72 For example, the African delegation and the WBU sought to include those unable to turn pages, those unable to move their eyes (and so requiring reformatting as opposed to re-writing), and those suffering from physical, mental, sensory, or cognitive incapacity. Standing Committee on Copyright and Related Rights, Twentieth Session Geneva,
21-24 June 2010, Draft Report Prepared by the Secretariat, SCCR/20/13 PROV, 6 August 2010. The African delegation also wanted to extend the treaty to any work in which copyright subsists, whereas the US proposed that it should be limited to works that had been published, and the EU to those which had been published in print. For consideration of the early stages of the negotiatons, see A Brown, S Harmon, C Waelde, ‘Do you See What I See?
Disability, Technology, Law and the Experience of Culture’ 2012 43(8) IIC 901, at 925-928
73 WIPO Standing Committee Document SCCR/23/7 Working Document on an international instrument on limitations and exceptions for visually impaired persons/ persons with print disabilities,.16 December 2011
74 C Saez, ‘In UN Talks on Treaty for the Blind, Concern about Focus on Rights Holders’ Interests’ IP Watch (20
April 2013) http://www.ip-watch.org/2013/04/20/in-un-talks-on-treaty-for-the-blind-concern-about-heavy-focuson-rightholders-interests/
75 See details in C Saez, ‘WIPO Treaty for Blind Negotiation Set for Mid-June in Marrakesh’ IP Watch (19 December
2012) http://www.ip-watch.org/2012/12/19/wipo-treaty-for-blind-negotiation-set-for-mid-june-in-marrakechchaired-by-mwape/
76 W New, ‘Mixed Reactions Among Participants in WIPO talks on Treaty for the Blind’ IP Watch (22 April 2013) http://www.ip-watch.org/2013/04/22/mixed-reactions-among-participants-in-wipo-talks-on-treaty-for-the-blind/
23

77 Religion and religious language also had a role in the negotiations. The Holy See made a contribution on June 18,
2013 quoting Pope John Paul II ‘It would be radically unworthy of man, and a denial of our common humanity, to admit to the life of the community, and thus admit to work, only those who are fully functional. To do so would be to practise a serious form of discrimination, that of the strong and healthy against the weak and sick’ John Paul II,
Encyclical Letter Laborem Exercens, 22: AAS 73 (1981), 634, Intervention by the Holy See at the Diplomatic
Conference of the World Intellectual Property Organization (WIPO) to Conclude a Treaty to Facilitate Access to
Published Works by Visually Impaired Persons and Persons with Print Disabilities (Marrakech, 18 June 2013); it should also be borne in mind that in the 18 th Century one line of thinking was that disability was inflicted by the hand of God, see discussion in D Turner Disability in Eighteenth-Century England. Imagining Physical Impairment
(Routledge: Oxon, 2012) Ch2, this work is also considered in note [8]]
78 WIPO document VIP/DC/12 and see WIPO resources via http://www.wipo.int/pressroom/en/articles/2013/article_0017.html
79 See eg R Kannan, ‘”Miracle at Marrakesh” to help visually impaired people read’ The Hindu (30 June 2013) http://cis-india.org/news/the-hindu-ramya-kannan-june-30-2013-miracle-at-marrakesh-to-help-visually-impairedread and see wide collection of commentary collated by Knowledge Ecology International, ‘Media Coverage of the
Marrakesh Treaty for the Blind Negotiations’ http://keionline.org/node/1783
80 First para, Marrackech Treaty Preamble
81 Third para, Marrackech Treaty Preamble
82 Fourth para, Marrackech Treaty Preamble
83 Eighth para, Marrackech Treaty Preamble
84 Ninth para, Marrackech Treaty Preamble
85 Article 4.1 Marrakech Treaty
86 Article 2(a) Marrakech Treaty, within the meaning of Article 2.1 of the Berne Convention
87 Article 3 Marrakech Treaty
88 Article 5 Marrakech Treaty
89 Article 18 Marrakech Treaty
90 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society OJ L 167 22.6.2001 10-19 (“InfoSoc
Directive”)
91 Article 3 b) InfoSoc Directive
92 See 1997/0359(COD) - 10/12/1997 legislative proposal, with an extension to all persons with disabilities coming in 1999 1997/0359(COD) - 21/05/1999 Modified legislative proposal
93 See consideration of a range of jurisdictions in SCCR, Study on Copyright Limitations and Exceptions for the
Visually Impaired, WIPO (20 February 2007); Foundation for Information Property Research, ‘Implementing the
EU Copyright Directive’ (2003) http://www.fipr.org/copyright/guide/eucd-guide.pdf; Harvard Digital Media
Project ‘Implementing the EUCD’ http://cyber.law.harvard.edu/media/eucd
94
95
In force 31 October 2003
96
97
Subject to a host of limitations: see ss. 81-83, CDPA 1988.
See http://www.ipo.gov.uk/ipreview.htm
HM Government, ‘Modernising Copyright: A modern, robust and flexible framework Government response to consultation on copyright exceptions and clarifying copyright law’ http://www.ipo.gov.uk/response-2011copyright-final.pdf, see Annex G p 42; in India, Copyright Amendment Bill 2012 introduced both fair use and compulsory licence provisions (Sections 51(1)(zb) and 31B) to enable reproductions to be made by and on behalf of persons with disabilities, see Z Thomas, ‘Overview of the Changes to the Indian Copyright Law’ Journal of Intellectual
Property Rights 2012 vol 17 pp 324-334
98 Intellectual Property Office, ‘Technical review of draft legislation on copyright exceptions’ (31 July 2013) http://www.ipo.gov.uk/hargreaves-copyright-techreview , including a link to the Draft Regulations
99 Draft Regulations inserting a new s31A(1)(b) and s31B(1)(b)
100 Draft Regulations inserting a new s31A(1)(a) and s31B(1)(a)
101 Draft Regulations inserting a new s31A(3)(a) and (b); s31B(4)(a) and (b).
102 http://www.daisy.org/publishers . Note that there have been voluntary and assisted steps to make works accessible in the absence of a legal framework, for example the Trusted Global Intermediaries Access Resource http://www.visionip.org/tigar/en/ in which WIPO have been involved, and agreements between Cambridge
University Press and Bookshare in 2010, see https://www.bookshare.org/_/aboutUs/2010/05/cambridgeUniversity . Regarding market based solutions, see A
Brown, S Harmon, C Waelde, ‘Do you See What I See? Disability, Technology, Law and the Experience of Culture’
2012 43(8) IIC 901, 909-913
103 http://www.callscotland.org.uk/Home/
24

104 See British Museum ‘Disability Equality Scheme’ http://www.britishmuseum.org/pdf/disability.pdf
; see also A
Brown, S Harmon, C Waelde, ‘Do you See What I See? Disability, Technology, Law and the Experience of Culture’
2012 43(8) IIC 901, 913
105 http://www.gateshead.gov.uk/Leisure%20and%20Culture/attractions/Angel/Home.aspx
106 http://en.wikipedia.org/wiki/Concrete_Cows
107 S 62 CDPA allows inter alia a graphic work to be made of a sculpture permanently situated in a public place and then to be further disseminated without infringing copyright. That would not include a 3d representation.
108 Article 15 1 (c) ICESCR
109 See eg L Helfer, ‘Human Rights and Intellectual Property: Conflict or Coexistence’ 5 Minnesota Intellectual Property
Review 47 (2003) [cross ref Gervais, Mylly, Peukert, Watal/Wager, Seuba, Correa]
110 A Chapman, ‘Approaching intellectual property as a human right: obligations related to Article 15(1)(c)’ Copyright
Bulletin vol XXXV No. 3, July-September 2001 UNESCO Publishing, Paris, France
111 [ cross ref]
112 General Comment no 17 (2005), para 1, 2, 3, 4, 7, 10; for discussion of the preparation of this General Comment, see AEL Brown, "Socially responsible intellectual property: a solution?", (2005) 2:4 SCRIPTed 485 http://www2.law.ed.ac.uk/ahrc/script-ed/vol2-4/csr.asp
, section 3.1
113 General Comment no 17 (2005), para 7
114 Ibid, para 18(b)(i) (though note that this refers only to physical accessibility to courts), 19, 20, 21, 34
115 Ibid, para 4
116 Ibid, para 35 and see also article 22 regarding limits
117 Protocol 1 article 1, ECHR
118 Anheuser-Busch Inc v Portugal (73049/01) (2007) 45 E.H.R.R. 36
119 Article 17(2), EU Charter; discussion in C. Geiger, ‘Constitutionalising" intellectual property law? The influence of fundamental rights on intellectual property in the European Union’ IIC 2006, 37(4), 371-406 and [cross ref
Geiger]
120 Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142. Or to a trade mark Levi Strauss & Co v Tesco Stores Ltd
[2002] EWHC 1625 (Ch)
121 Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU (C- 275/06) [2008] 2 C.M.L.R. 17 , SABAM v
Netlog BV (C-360/10) [2012] 2 CMLR 18
122 which is in turn covered by article 9 TRIPS
123 General Comment No. 17 (2005), para 2
124 General Comment No. 17 (2005), paras 12, 13, 14, 31
125 Section 80 CDPA
126 Tidy v Natural History Museum Trustees (1995) 37 IPR 501 (cartoons prepared for museum, smaller version included in book published by museum - not breach of integrity); Confetti Records v Warner Music UK Ltd [2003] EMLR 35
(distorting a work by mixing it in a compilation album with rap material not breach of integrity, no evidence suggesting there was prejudice to author’s damage and reputation); for this, there must be more than a miscellany of trivia Harrison v Harrison [2010] EWPCC 3
127 Draft Regulations inserting a new s31A(7) and s31B(12).
128 N Joint, ‘Libraries, digitisation and disability’, Library Review (2006) 55(3), pp.168 – 172; C Saez, ‘How the Main
Issues of the Marrakesh Treaty for the Blind were solved in the Nick of Time’ IP Watch (1 July 2013) http://www.ip-watch.org/2013/07/01/how-the-main-issues-of-the-marrakesh-treaty-for-the-blind-were-solved-inthe-nick-of-time/ ; M Ficsor, ‘The preparation of a WIPO instruments/treaty on the exceptions or limitations for the visually impaired in the light of WIPO/UNESCO Model Provisions on the same Adoped in the “guided development” period’ Fordham IP conference April 2013 http://fordhamipconference.com/wpcontent/uploads/2013/04/Panel-4B_Ficsor.pdf
regarding Colombia in 1983, p16 paras 95 and 96; P Hely, ‘A
Model Copyright to Serve the Visually Impaired: An Alternative to the Treaty Provisions Before WIPO’ Vanderbilt
Journal of International Law (2010) Vol 43: 1369-1411, p1393
129 Article 2(a) Marrakech Treaty
130 Articles 1 and 30 CRPD
131 Other issues relating copyright, performance and authorship, which are outside the scope of this chapter, are being explored by the authors with colleagues from Law and from Dance, in the project “InVisible Difference” funded kindly by the Arts and Humanities Research Council [insert site when it goes live]
132 See Caroline Bowditch, Dance 4 http://dance4.co.uk/profile/associate-artist/caroline-bowditch
133 See David Toole website http://www.davidtoole.co.uk/
134 See blogpost comment http://jameelajamil.co.uk/post/59487143866/an-inconvenient-truth In 2010 it was reported in the US that ‘There are currently 587 regular roles on network television series – only six of which depict
25

a person with a disability. Out of those six, only one actor, Robert David Hall of CSI, is himself disabled.’ See
School of Media and Communication Temple University, ‘RTF alumnus earns award for advocacy of disabled performers’ (20 December 2010) http://smc.temple.edu/news-events/2010/12/rtf-alumnus-earns-award-foradvocacy-of-disabled-performers/
135 Details available on Disability Arts Online website http://www.disabilityartsonline.org.uk/Performing-Artsindex Note the report by Demos (Claudia Wood) ‘One Year On: A review of the cultural legacy of the
Paralympics’ (September 2013) exhorting the Government to pay more heed to the cultural legacy of the
Paralympics. . Report available at demos.co.uk
136 Article 30(5) CRPD
137 Other factors are also relevant to this, including training and leadership. Elements of this as being explored in are being explored by the authors with colleagues from Law and from Dance, in the project “InVisible Difference” funded kindly by the Arts and Humanities Research Council [insert site when it goes live]
138 L Helfer and G Austin, Human Rights and Intellectual Property: Mapping the Global Interface (Cambridge University
Press, US, 2011) p 241.
139 General Comment No: 21 para 52(d)
140 Arts Speech by Culture Secretary Maria Miller. 24 April 2013.
141 General Comment 20, (2009) paras 11, 15, 16, 28. 2009
142 Ibid, para 9
143 Articles 21(1) and 26 EU Charter
144 Funding for Unlimited II has been announced by the Arts Council http://www.artscouncil.org.uk/funding/apply-for-funding/unlimited-ii-commissioned-grant/
145 See C Barnes and M Oliver `Disability Rights: Rhetoric and Reality in the UK', Disability and Society, (1995) 10(1) pp. 111-116; R Hurst, ‘Disabled Peoples’ International: Europe and the social model of disability’ in C Barnes and G
Mercer (eds) The Social Model of Disability: Europe and the Majority World (Leeds: The Disability Press, 2005)
146 Barnes and Oliver ibid. See also discussion particularly from the United States and employment perspective in M
A Stein, ‘Beyond Disability Civil Rights’ 58 HASTINGS L.J. 1203 (2007)
147 Barnes and Oliver n 147.
148 D Michailikis (1997), “When Opportunity is the Thing to be Equalised”, Disability &Society (1997) 12(1): 17-30,
19-20, quoted in R Lang, ‘The development and Critique of the Social Model of Disability’ (2001) http://www.ucl.ac.uk/lc-ccr/lccstaff/raymondlang/DEVELOPMMENT_AND_CRITIQUE_OF_THE_SOCIAL_MODEL_OF_D.pdf
149 See Arts Council England website ‘The Creative Case for Diversity: innovation and excellence in the arts’ http://disabilityarts.creativecase.org.uk/
150 Comment by Richard Appignanasi, in interview in ‘Discussion The Creative Case: are diverse artists at risk of being turned into a smoothie’ Disability Arts Online at http://www.disabilityartsonline.org.uk/?location_id=1526&item=2344
151 A Sutherland, ‘Choices, Rights and cabaret: Disability Arts and Collective Identity’ in J Swain and S French (eds)
Disability on Equal Terms(Sage, London, 2008) p 86
152 Article 35, 36 CRPD
153 See article 34, 36 CRPD, http://www.ohchr.org/en/hrbodies/crpd/pages/crpdindex.aspx
154 http://www.ohchr.org/EN/HRBodies/CRPD/Pages/OptionalProtocolRightsPersonsWithDisabilities.aspx
; many countries, including the UK, are parties http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15-a&chapter=4&lang=en
155 Committee on Economic, Social and Cultural Rights in respect of the lCESCR http://www.ohchr.org/EN/HRBodies/CESCR/Pages/CESCRIndex.aspx;
156 Human Rights Committee in respect of the ICCPR
( http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx
)
157 999 UNTS 171 http://www2.ohchr.org/english/bodies/hrc/procedure.htm
; http://www2.ohchr.org/english/law/docs/A.RES.63.117_en.pdf
158 Parties to ICCPR First Protocol http://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-
5&chapter=4&lang=en ; parties to ICESCR Protocol http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3-a&chapter=4&lang=en
159 For discussion about monitoring and compliance at international level, see M Bowman, ‘Towards a unified treaty body for monitoring compliance with UN human rights conventions? Legal mechanisms for treaty reform’ HRLRev.
2007, 7(1), 225-249 and regarding impact see R Keohane, ‘International Relations and International Law: Two
Optics’ 38 Harvard International Law Journal (1997)487-502
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160 ECHR Protocol II, ECHR article 34
161 Eg Brustle v Greenpeace eV (C-34/10) [2013] 1 CMLR 41
162162 Sections 3 and 6 HRA
163 Note the copyright action in the United States ongoing at the time of writing which involves access for printdisabled individuals in the context of large collations of materialThe Authors Guild Inc, v Hathi TRUST Dist. Court.
SD New York 2012, part III of judgment; there is an ongoing appeal and amici briefs have been lodged regarding the relationship between copyright and disability within the United States -see http://dockets.justia.com/docket/circuit-courts/ca2/12-4547
164 Glor v Switzerland (App. No. 13444/04 (30 April 2009) regarding tax and Kiss v Hungary (Application No.
38832/06 (2010) regarding voting
165 Which include being subject to such formalities…as are prescribed by law and are necessary in a democratic society…for the protection of the reputation or rights of others
166 [cross ref Ashdown, Levi, Greenpeace, Sabam, Telefonica] consider also Neij v Sweden (Admissibility) (2013)
56 EHRR SE19; Netherlands v European Parliament (C377/98) [2001] E.C.R. I-707; Sky Osterreich GmbH v Osterreicher
Rundfunk [2013] 2 CMLR 25 and see also discussion of the decision of the European Court of Human Rights Ashby
Donald v France (2013) in http://echrblog.blogspot.co.uk/2013/01/copyright-vs-freedom-of-expression.html
[compare Plomer, Matthews, Samuels, Chiarolla, Gangee, Sganga]
167 See also AEL Brown Intellectual Property, Human Rights and Competition. Access to Essential Innovation and Technology
(Edward Elgar 2012), 71-82,in particular 80-1
168 [cross ref note re project]
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