Meera Nair


In Posts on December 10, 2012 at 2:23 pm

Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms.”

Convention on the Rights of Persons with Disabilities
United Nations General Assembly, adopted 13 December 2006.

An extraordinary General Assembly of WIPO is scheduled for 17-18 December 2012 in Geneva; delegates will consider whether or not to convene a diplomatic conference in 2013 to further examine the necessity of an international treaty to facilitate access to copyrighted material for visually impaired people. This follows the 25th session of WIPO’s Standing Committee on Copyright and Related Rights which took place last month. IP Watch described in detail the lack of progress during the November meetings, with non-governmental organizations (NGOs) unable to fully participate in the drafting of the proposed language:

 The drafting of the document is being done in informal sessions inaccessible to NGOs, which are left guessing what is happening in those sessions and become aware of the progress only when a new text is issued.

At the end of the November meetings, Chris Friend (Chair of the Right To Read campaign of the World Blind Union) drew attention to a key issue:

[The treaty needs] to clearly permit cross-border sharing of accessible books both between organisations and directly from organisations to blind or print disabled individuals. We reject complicated requirements for checks on whether the books are commercially available. Such procedures would sacrifice the usability of the treaty on the altar of publisher reassurance.

The irony is that very little material is commercially available. By the World Blind Union’s figures: “Only some 7% of published books are ever made accessible (in formats such as Braille, audio and large print) in the richest countries, and less than 1% in poorer ones.” The paucity of materials for the visually disabled has been acknowledged by Alan Adler (Vice-President of Legal and Government Affairs for the Association of American Publishers). During an interview conducted on 18 July 2012 by Jamie Love of Knowledge Ecology International, Adler said that accessible formats are  “a difficult thing to provide market solutions for … there is a need for some form of regulatory assistance in that area.” Where Adler is not comfortable with further regulatory assistance by way of limitations on copyright, is in the realm of library and educational provisions. When asked by Love whether the AAP had position on achieving a treaty or some other form of international agreement, Adler went so far as to say that it “would not have been as much of a problem if we were only working on the issue of print disabilities … .” But given the risk of setting precedent (with other causes already standing in line) the AAP has reservations.

So if, perhaps, maybe, the treaty for visually disabled people is disassociated from other arguments for granting more meaningful rights of public access, then a workable treaty can be reached? I would like to be optimistic but the discussion surrounding access to copyrighted materials for the disabled has been ongoing for thirty years. WIPO and UNESCO together proposed a Working Group for such access in 1981. The Group met for the first time from 25-27 October 1982; the report of which was released on 3 January 1983.

The principal concern voiced by the publishing sector today was as much in evidence in 1982: that a special provision would undermine the exclusive right of authors.  But the inability of the market to meet the needs of the disabled was also evident: “… that the number of handicapped persons in each country was relatively small and therefore the market for materials intended for them limited. This fact seemed to the experts to fully justify the exceptions which are explained in the following paragraphs.”

Regrettably, the demands of the publishing sector have only become more stringent as the decades went by. A treaty for rights of access for the visually disabled may be possible; although, the United States continues to oppose the strength of a treaty.  But even if the United States concedes as a gesture of international cooperation, the language of the treaty will be highly restrictive. Carolyn Rossini, writing for the Electronic Frontier Foundation, indicates that the November meetings did not yield consensus upon the more controversial aspects (circumventing digital locks and allowing for cross-border cooperation) but did manage to narrow the possible-treaty’s scope (the needs of the hearing disabled are not included and all audiovisual works are excluded from consideration). More telling is what has appeared in the draft text; specific reference is made to the three-step test. As I wrote a year ago, this language from the Berne Convention does not close the door on flexible exceptions to copyright (the American regime of fair use stands as a shining example) but the copyright holders invoke the test to incite doubt and fear.

Copyright holders are adamant that appropriate safeguards be enacted along with better access to copyrighted works; it is odd that they do not see libraries as a natural ally in this process. As Winston Tabb (Dean of Libraries and Museums at John Hopkins University, Chair of the International Federation of Library Associations and Institutions (IFLA) and recipient of the 2012 L. Ray Patterson Copyright in Support of Users Rights) stated to WIPO in reference to earlier draft text:

Visually impaired and print disabled people are deprived of the basic human right to read because this committee has not been able to agree.  The library community, which is the major provider of services assisting blind people to access information, believes that the proposed treaty that the World Blind Union and related organizations is seeking is right, fair, just, and long overdue.

Arguably, the library community is a major provider of services assisting all people and the international library community network is well-positioned to assist in fulfilling the due diligence of appropriate safeguards.

If we take the Convention on the Rights of Persons with Disabilities seriously, then the needs of the disabled are a subset of the needs of the public. The publishing sector would do better to enlist the aid of IFLA and its members, and work towards maintaining the legitimate role libraries play in the dissemination of copyrighted works. The matter of transformation and supply of works is only a means to the end, not an end unto itself. As was decreed 64 years ago, it is a fundamental right for all people to “freely participate in the cultural life of a community.” Libraries are sites where copyright and this fundamental right are reconciled.

“Everyone has a right freely to participate in the cultural life of the community, to enjoy the arts and to share in the scientific advancement and its benefits.”

Universal Declaration on Human Rights
United Nations General Assembly, adopted 10 December 1948

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