1 DREAM ITN Final Deliverable Abigail Rekas Centre for Disability, Law and Policy, University of ...

13 Pages·2015·0.2 MB·English

by  Joanna Forde

DREAM ITN

Final Deliverable

Abigail Rekas

Centre for Disability, Law and Policy, University of Ireland, Galway

Supervisor: Professor Gerard Quinn

DREAM work package: Re-balancing Intellectual property (copyright) with the
disability rights to enable blind & deafblind users to access electronic media

April, 2015

1
1. Introduction to My Topic/Research Questions.
The research envisaged by this work package was based around a very specific
movement. At the time this work package was drafted, the campaign to end the so-
called “book famine” was beginning to reach critical mass. The term “book famine”
referred to the fact that, at that time, less than 5% of all books published annually in
the developed world were then transposed into an accessible format,1 a number that
dipped to approximately 1% in the developing world.2 This meant that persons with
print disabilities3 had significantly less access to books than those who do not need a
specialized format to access print material or the written word.

While the international community had been aware of the issue for many years, it was
not until the World Blind Union (WBU) and several strategic partners drafted a treaty,
which was then put forward at the World Intellectual Property Organization4 by
Brazil, Ecuador and Paraguay (later joined by Mexico) in 2009 that there was any real
movement to address the problem. This is not to discount the work done in 1985 by
the Executive Committee of the Berne Union and the Sixth Ordinary Universal
Copyright Convention together with UNESCO that produced a study entitled
Copyright Problems Raised by the Access by Handicapped Persons to Protected
Works in 1985. This work, while extremely thoughtful and thorough, did not actually
increase access for the print disabled.

The WBU treaty was perfectly poised to make real change for a variety of reasons,
including the recent coming into force of the United Nations Convention on the

1
 Accessible
 formats
 include:
 Braille,
 large
 print,
 audio,
 digital
 output
 for
 a
 refreshable
 Braille
 reader
 and
 Digital

Accessible
 Information
 SYstem
 (DAISY)
 standard
 books
 which
 can
 be
 digital
 files
 encompassing
 a
 number
 of
 accessibility

functions
 (this
 is
 a
 non-­‐exhaustive
 list,
 as
 technology
 continues
 to
 evolve).

2
 This
 number
 has
 since
 improved
 to
 approximately
 7%.
 World
 Blind
 Union
 Press
 Release,
 18
 Dec.
 2012.

http://www.worldblindunion.org/English/Pages/default.aspx

3
 For
 the
 purposes
 of
 this
 paper,
 the
 term
 Print
 Disability
 will
 encompass
 any
 disability
 that
 limits
 a
 person’s
 ability
 to

access
 standard
 text
 material.
 While
 there
 are
 many
 disabilities
 that
 affect
 a
 person’s
 ability
 to
 read
 and
 understand
 print

material,
 this
 paper
 is
 limited
 to
 those
 visual,
 perceptive
 and
 motor
 impairments
 that
 do
 not
 require
 substantive

alteration
 to
 the
 content
 of
 a
 work
 to
 enable
 access.

4
 The
 World
 Intellectual
 Property
 Organization
 administers
 all
 treaties
 relating
 to
 copyright
 (including
 the
 Berne

Convention),
 except
 the
 TRIPS
 agreement
 of
 the
 WTO.
 WIPO
 is
 an
 agency
 of
 the
 United
 Nations,
 established
 in
 1967.

There
 are
 184
 member
 states,
 including
 China,
 the
 EU,
 the
 United
 States
 and
 the
 Russian
 Federation,
 and
 250
 accredited

observers,
 including
 the
 World
 Blind
 Union
 and
 International
 Federation
 of
 Library
 Associations.
 The
 Standing

Committee
 on
 Copyright
 and
 Related
 Rights
 (SCCR)
 is
 the
 committee
 that
 debates
 and
 negotiates
 any
 new
 international

instruments
 relating
 to
 copyright.
 (WIPO
 http://www.wipo.int,
 last
 accessed
 June,
 3
 2014).

2
Rights of Persons with Disabilities (UNCRPD).5 Article 30.3 of the UNCRPD
requires that State Parties take all appropriate steps to ensure that the intellectual
property framework (primarily copyright) does not in itself create an unreasonable or
discriminatory barrier to access to cultural materials. The UNCRPD was the first
international treaty to specifically address the problem of copyright policy closing
doors to access to cultural materials.

International pressure was increased by the perception, particularly prevalent in the
developing world, that the balance of intellectual property had shifted too far away
from access. This had a great deal to do with the approaching deadline for Least
Developed Country Members (LDCs) of the World Trade Organization to implement
the Trade Related Aspects of Intellectual Property (TRIPS) agreement,6 which
imposed the obligation to place strong Western style protections for Intellectual
Property on LDCs. Users rights, and access to intellectual property for LDCs
combined with the “right to read” campaign and gave legs to a movement that had
languished for almost 25 years.

The work package, as drafted, was intended to analyze the proposed WBU treaty, and
the implications it would have had for European Union (EU) law and policy.
Additionally the work package called for examining how copyright law within the EU
must change to enable the flexibility required by the CRPD, so that it did not become
a barrier to access for persons with disabilities. Lastly, the work package called for
the researcher to examine how best to rebalance intellectual property to ensure access
without disadvantaging European business.

However, events conspired to broaden the scope of that research. Namely, the
proposed treaty became a reality. The WBU treaty through much negotiation became
the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are

5
 Convention
 on
 the
 Rights
 of
 Persons
 with
 Disabilities,
 Art.
 30.3
 G.A.
 Res
 61/106,
 U.N.
 Doc.
 A/RES/61/106.
 (Jan.
 24,

2007)
 entered
 into
 force
 May
 3,
 2008)
 [UNCRPD]

6
 LDCs
 were
 initially
 given
 an
 extension
 to
 implement
 the
 TRIPS
 agreement
 with
 the
 establishment
 of
 the
 World
 Trade

Organization.
 Extensions
 continue
 to
 be
 granted
 recognizing
 the
 need
 for
 further
 technological
 and
 financial
 capacity

within
 LDCs.
 TRIPS
 implementation
 was
 extended
 in
 2013
 to
 2021,
 or
 until
 they
 are
 no
 longer
 a
 LDC
 member,
 whichever

is
 sooner.
 (http://www.wto.org/english/tratop_e/trips_e/ldc_e.htm)

3
Blind, Visually Impaired or Otherwise Print Disabled.7 While the treaty is not yet in
force, it changed the center of gravity of this work package from analyzing a proposed
treaty benefiting a subsection of disabled persons, mainly the print disabled, to
analyzing how article 30.3 of the UNCRPD could be more broadly understood to
create access to a great variety of cultural materials for a more diverse group of
disabled persons.

As the research broadened after the Marrakesh Treaty was born, I began to question
what exactly cultural materials are, and why they are important. If the scope of my
research extends beyond books, and I believe it should based on the text of Article
30.3, then what exactly should it cover? For the purposes of my research, I have
decided that the term “cultural materials” applies to works that are protected by
copyright. This is a limited understanding, but given the context of Article 30, which
covers Participation in Cultural Life, Recreation, Leisure and Sport, it seems
appropriate. Copyright protects “original works of authorship… fixed in any tangible
medium of expression;”8 it can cover books, music, films, photographs, sculpture and
other art, architecture and even choreography among other things.

Some might say that access to cultural materials may not seem to be as important as
the right to adequate food and medical care, particularly in the developing world.
However, it has been recognized that all human rights are reliant on other rights for
their realization. The Vienna Declaration and Programme of Action, as adopted by the
World Conference on Human Rights states: “All human rights are universal,
indivisible and interdependent and interrelated. The international community must
treat human rights globally in a fair and equal manner, on the same footing, and with
the same emphasis.”9 It is impossible to be effectively politically active if one has no
food, it is difficult to have food if one has no education, and it is difficult to have
education if one has no access to books.

7
 WIPO
 Marrakesh
 Treaty
 to
 Facilitate
 Access
 to
 Published
 Works
 for
 Persons
 who
 are
 Blind,
 Visually
 Impaired
 or

Otherwise
 Print
 Disabled,
 VIP/DC/8
 REV

 (June
 27,
 2013
 (treaty
 not
 yet
 in
 force))
 (Marrakesh
 Treaty).

8
 Black’s
 Law
 Dictionary
 (9th
 ed.
 2009).

9
 Vienna
 Declaration
 and
 Programme
 of
 Action,
 as
 adopted
 by
 the
 World
 Conference
 on
 Human
 Rights
 art.
 5
 (25
 June

1993)

4
2. My Research Journey.
The research initially involved in this work package was primarily statutory analysis
at the national, European and international levels. There was an element of impact
assessment to determine how exceptions and limitations to copyright had functioned
to create a greater degree of access to books. It also involved a surprising amount of
historical research to orientate the research and explain the present state of affairs.
This type of research was needed to bridge the gap between intellectual property
scholars and disability rights scholars.

Human rights and copyright are two spheres of research and policy that have been
developing and becoming more robust over the last fifty years, but the intersection
between them was not addressed until fairly recently.10 This intersection was
highlighted and addressed in the UNCRPD in Article 30.3, which emphasized the
need for balance between access for persons with disabilities and protection of
intellectual property. This is the first international treaty explicitly to address the
tension between access and authors rights, and to squarely come down on the side of
access.

As the fields of copyright and disability rights developed independently, the scholars
and stakeholders working within those spheres have not traditionally communicated
to any substantial degree. There is a substantial disconnect between the two groups. In
order to explain to either “side” with any semblance of credibility, I needed to be
grounded in both fields.

Before embarking on this research project I was unaware just how ignorant each silo
was of the work of the other. Indeed, I was ignorant of a great deal more of the
development of disability law and policy than I had known. The research I had
planned was complicated by this fact. On top of my own ignorance, I learned that in
many cases I had to explain concepts of intellectual property that I took for granted,
as my academic background had focused on intellectual property. All too often I
found myself faced with blank stares, and the question “so what?” coming from both
sides of the divide.

10
 For
 a
 primer
 on
 the
 intersection
 of
 human
 rights
 and
 intellectual
 property,
 I
 recommend
 Laurence
 R.
 Helfer
 and

Graeme
 W.
 Austin,
 Human
 Rights
 and
 Intellectual
 Property,
 (Cambridge
 University
 Press
 2011).

5
In order for my research to bridge this gap, I had to change the course of my research,
and added a great deal more foundational knowledge, beginning with concepts of
property, and justifications of intellectual property, and including with the
development of access to cultural content as a human right. In order to defeat the “so
what” stare, I have to be able to tell the story of copyright and the story of the battle
for access in a way that is accessible to non-specialists.

The least anticipated turn of my research journey was the creation of the Marrakesh
Treaty. I do not think that anyone expected the treaty to come into existence so
quickly, particularly after it had apparently stalled for over a year. While the research
outlined in the research package was focused on the potentiality of the treaty, the
research I have conducted for the past year, since the creation of the treaty has been
much broader in scope. Instead of looking at this singular battle for accessible books,
I have been looking at the actual impact of that treaty, and what it accomplishes, as
well as how policy makers can learn from the process to address other battles for
access to cultural materials. The birth of the treaty changed the direction of my
research substantially.

The most surprising thing I discovered in my research is that intellectual property is
only a relatively small piece of the puzzle of access to cultural materials. Other pieces
are the attitudes of the advocates involved, the various tools used to ensure access, the
fragmentation of approach across different countries and lastly, the lack of
cooperation between the legislation around the rights of disabled persons and
intellectual property legislation.

Copyright is a negative right and it is extremely limited in what it can accomplish to
ensure equal access to cultural materials. I find it helpful to imagine copyright as a
field bounded by a fence. There is a gate in the fence, and the copyright holder
controls who can come into the field. Exceptions and limitations to copyright tell the
copyright holder whom he or she must not bar from the field, and that is as far as they
go. There is no positive obligation on the copyright holder to find people to come into
his or her field, or to make his or her field accessible. The copyright holder simply
6
cannot bar those visitors who fall into the category outlined by exceptions and
limitations.

My research journey has lead me to believe that my primary goal should not simply
be advocating for well-crafted exceptions and limitations to copyright, but marrying
those exceptions to positive legislation to encourage (or force) the content industry,
and other culture institutions to ensure their goods and services are accessible.
Copyright exceptions are not enough in and of themselves to ensure equal access to
cultural materials.

When I began my research, my perception was that the primary obstacles to change
were the broader interest groups, primarily those with large intellectual property
holdings. This was borne out by the amount of money spent by the organizations like
the Motion Picture Association of America and companies like General Electric
fighting the Marrakesh Treaty.11 This remains my perception.

Common sense says most of these companies and organizations are not truly worried
about access to cultural materials for persons with disabilities. What concerns them is
the greater implications of so-called “users rights” gaining traction on the
international playing field. This has a great deal to do with the disruptive power of the
Internet, and the fight over patents, and a little to do with access for a discrete group
of persons with disabilities. Piracy and the developing world are specters looming in
the background of any discussion about access to cultural materials for persons with
disabilities.

This is unfortunate, because the tools the digital revolution has provided have created
new frontiers of accessibility. Access to books is just the tip of the iceberg, access to
images, to works of art, film, news broadcasts historical archives and who knows
what else are now within the grasp of persons with disabilities, provided the tools are
not locked away by copyright and anti-piracy legislation. Unfortunately, there is a
strong and well-funded lobby against any perceived liberalization of copyright and

11
 A
 collection
 of
 articles
 about
 Private
 Sector
 actors
 advocating
 against
 the
 Marrakesh
 Treaty
 can
 be
 found
 on
 the

Knowledge
 Ecology
 International
 (KEI)
 website.
 (People
 Who
 Oppose
 Robust
 Copyright
 Exceptions
 for
 Blind
 People
 (the

Private
 Sector)
 http://keionline.org/opposingblind-­‐privatesector

7
anti-piracy legislation, as it is viewed as the first step on a slippery slope leading to
the eventual break-down of the intellectual property system. The narrow scope of the
Marrakesh treaty, which specifically does not include access to audio-visual
materials, is a result of fear based lobbying of private industry.

3. My Formation as a Policy Entrepreneur.
I was given the opportunity to attend the WIPO treaty conference to establish the
Marrakesh Treaty, as a representative of G3ict.12 I have often heard that “If you like
laws and sausages, you should never watch either one being made.”13 In Marrakesh, it
was the influence of those parties not present that gave the process its “sausage
making” quality; the parties fighting the treaty who had no vested interest in its
outcome other than the slippery slope. In the end though, they did not win the day.

While the treaty does not cover as much as I would like, the mere fact of its existence
is more than I expected, and watching it being made, I was not put off by the
compromise that went into making it. Compromise rarely results in both parties
getting exactly what they want. I do not think it is the magic bullet to end the book
famine, but it’s a step in the correct direction, and marks a significant change in the
international intellectual property corpus of laws. It is the first “users rights” treaty
(all other international IP treaties expand the rights of rights-holders), and may mark a
shift in attitudes to a more access based system. It remains to be seen.

The hardest thing about my role as an agent of change, or a policy entrepreneur, or a
knowledge provider is to not be discouraged by how slowly the process of change
moves. Fighting cynicism when faced with what seems like endless resources pushing
against the position you advocate for is challenging. Sometimes the best I can do is
hide it, and say the right words. I mention this because of the DREAM network, and

12
 G3ict
 –
 the
 Global
 Initiative
 for
 Inclusive
 Information
 and
 Communication
 Technologies
 –
 is
 an
 advocacy
 initiative

launched
 in
 December
 2006
 by
 the
 United
 Nations
 Global
 Alliance
 for
 ICT
 and
 Development,
 in
 cooperation
 with
 the

Secretariat
 for
 the
 Convention
 on
 the
 Rights
 of
 Persons
 with
 Disabilities
 at
 UN
 DESA.
 Its
 mission
 is
 to
 facilitate
 and

support
 the
 implementation
 of
 the
 dispositions
 of
 the
 Convention
 on
 the
 Rights
 of
 Persons
 with
 Disabilities
 on
 the

accessibility
 of
 Information
 Communication
 Technologies
 (ICTs)
 and
 assistive
 technologies.
 -­‐
 See
 more
 at:

http://g3ict.com/about#sthash.nEf1gd3s.dpuf

13
 This
 quote
 is
 frequently
 attributed
 to
 Otto
 von
 Bismark,
 but
 it
 remains
 unclear
 who
 originally
 compared
 lawmaking
 to

sausage-­‐making.
 Sausage
 makers
 resent
 the
 implication.

http://www.nytimes.com/2010/12/05/weekinreview/05pear.html

8
how the support of certain other DREAM Fellows, and DREAM administrators was
crucial to my not losing heart. A support network is crucial for agents of change, even
when not working on the same issues, having another person who is facing what feels
like insurmountable odds and understand just how exhausting and disheartening that
can be, can be the difference between giving up and pushing through. Researchers
need other researchers; none of us are as good as we can be in a vacuum.

That being said, researchers also desperately need to connect with advocates and
stakeholders outside the academy. This dose of reality, the practical implications of
their research, makes the narrative they share with other academics and policy makers
more valid. My experience working with Benetech14 in Palo Alto gave me the
opportunity to put boots on the ground and do some of the work I write about.
Benetech is on the cutting edge of accessible cultural content. Benetech is the home of
Bookshare, one of the world’s largest accessible digital libraries providing service to
persons with print disabilities.

Benetech has partnered with publishers to provide accessible format books to people
in the United States. Benetech was also ahead of the curve in sharing those digital
format accessible books around the world, using those partnerships with publishers to
legally transfer files to partner organizations and disabled persons in other countries.
They were part of the coalition to bring about the Marrakesh Treaty. Benetech is also
on the cutting edge of access to cultural materials beyond books. The Diagram Center
focuses on access to images, particularly in the academic context. They do so through
metadata such as alt-text with a written description of the image, or meta-data that is
readable by special printers that can create raised images, or 3D printers.

Working in an organization that provides accessible books to users allowed me to
understand first-hand the challenges they face with unclear legislation and cross-
border legal uncertainty. The most important thing I learned with Benetech about my
role as a researcher and policy entrepreneur is that whatever the intention of
legislation, if the language isn’t clear and easy to interpret, it becomes difficult to use,

14
 For
 more
 about
 Benetech:
 http://benetech.org/our-­‐programs/overview/.

9
particularly for organizations that may not have the resources to employ attorneys to
advise them, much less the average user who doesn’t have any legal expertise.

4. Tentative Outcomes/Recommendations.
Unfortunately the change I think would have the most effect for the European Union
is unlikely to be implemented any time soon. Understanding Copyright in the
European Union is a difficult task. Copyright traditionally is a territorial right15 and
this remains true in the European Union, where member states each have their own
copyright regimes. These copyright regimes, however, must exist within the
boundaries of international law, and European law, as handed down from the
commission in Directives.16 These Directives have harmonized certain aspects (e.g.
term of protection or the rental right) of copyright and related rights within Europe to
ease barriers within the common market. There has been no Directive to completely
harmonize European copyright. This patchwork of directives and shared competency
adds a layer of difficulty to legislating to open the door of accessibility.

As it stands right now, the Directive on the Harmonization of Certain Aspects of
Copyright and Related Rights in the Information Society17 offers a discrete,
permissive list of exceptions and limitations that European member states may choose
from, including an exception for persons with disabilities.18 These exceptions and
limitations do not have to be directly transposed into domestic law, but can be
implemented as the member state choses within the bounds of the 3-step test of the
Berne Convention on Copyright. 19

15
 Copyright
 law
 is
 territorial
 in
 nature;
 protection
 only
 extends
 to
 the
 physical
 borders
 of
 the
 protecting
 state.
 Each
 state

has
 developed
 its
 own
 laws,
 regulations
 and
 exceptions
 about
 and
 to
 copyright.

16
 Directives
 freely
 available
 online
 here:
 http://ec.europa.eu/internal_market/copyright/documents/index_en.htm

17
 Directive
 2001/29/EC
 of
 the
 European
 Parliament
 of
 the
 Council
 of
 22
 May
 2001
 on
 the
 Harmonization
 of
 Certain

Aspects
 of
 Copyright
 and
 Related
 Rights
 in
 the
 Information
 Society,
 O.J.
 L6/70,
 10
 January
 2002.
 http://eur-­‐
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML
 (InfoSoc
 Directive).

18
 Id
 art.
 5.

19
 “The
 three
 step
 test
 states
 that
 exceptions
 must
 only
 be
 in
 “certain
 special
 cases,”
 it
 must
 not
 “conflict
 with
 the
 normal

exploitation
 of
 a
 work,”
 and
 must
 not
 “unreasonably
 prejudice
 the
 legitimate
 interests
 of
 the
 author.”
 Berne
 Convention

for
 the
 Protection
 of
 Literary
 and
 Artistic
 Works,
 Sept.
 9
 1886,
 as
 last
 revised
 at
 Paris,
 July
 24,
 1971,
 828
 U.N.T.S.
 221
 Art.

9(2)
 (Berne
 Convention).

10