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Abigail Rekas

  Accessible Publishing


Why Persons with Print Disability Do Not Have Access to Print and Digital Content

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This post is a sequel to my previous blog where I explain the need for a Treaty on Exceptions and Limitations to Copyright to Benefit Print Disabled Persons. This write-up provides some basic information on copyright policy and exceptions and limitations to copyright.  

Understanding Copyright Regulations:

Copyright is a means of creating a balance between encouraging and rewarding creativity and making the creative work widely available for public consumption. Copyright policy should do more than just protect the right of an author to benefit financially from their creation; it should also foster innovation and creativity, by guaranteeing a robust public domain.

Copyright should encourage creativity without preventing the public from accessing the creative work. The copyright mechanism provides a limited period of exclusive rights to the creator of the work. This period of exclusivity is intended to encourage creation but limited to allow the public free access at some point. There is no point in encouraging creative activity if the means to encourage it prevents its use, or limiting the right to copy prohibits further creativity that builds upon what has come before.

While many nations have differing justifications for the protection of copyright, this notion of balance is accepted throughout the world. The World Intellectual Property Organization (WIPO) is “a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest”.

WIPO Director General Opens Marrakesh Diplomatic Conference for VIPs

WIPO Director General Francis Gurry opened on June 18, 2013 a diplomatic conference on a new international treaty to improve access to books for blind, visually impaired, and other print disabled people. The WIPO Diplomatic Conference in Marrakesh, Morocco, is meeting through June 28, 2013. Mr. Gurry said the treaty seeks to establish an enabling legal framework to facilitate the production of accessible formats and their exchange across borders. © WIPO 2013. Photo: Emmanuel Berrod.

Barriers to Access:

One way the balance is maintained is through a system of limitations and exceptions to the exclusive right of the owner of the copyright. An exception or limitation to copyright changes the way copyright policy is applied, i.e. licensing fees may be limited or waived, authors may not have the right to prevent distribution in a certain format, and so forth. Exceptions differ from country to country, depending on their nature and types of action they allow, but are frequently created for uses like commentary or criticism, news reporting, academic research, teaching, archiving, and access for the print disabled community. These exceptions help safeguard the public interest in access to knowledge and culture as embodied in the material protected by copyright.

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. This has made cross border trade of books created under exceptions confusing and difficult since each state’s exceptions are different in scope. There has been some regional transfer analogue accessible books (i.e. hardcopy Braille and audio cassettes), but that has been the extent of any sharing between nations. The difference between what is permissible under an exception in country A and what is permissible under an exception in country B, and the risk adverse nature of accessible publishers (who are relying heavily on the goodwill of publishers), make the prospect of sending books created under exceptions daunting.

Since every exception is only valid to the physical borders of the protecting country, the minute a book created under an exception crosses a border it becomes, at best, a grey market good. Publishers of accessible print material are understandably hesitant to send book files across borders if that action might subject them to civil or even criminal penalties, or cause them to lose the goodwill of publishers.

This results in great redundancy in the accessible publishing world. An illustrative case in point is the book Harry Potter and the Chamber of Secrets, an English language novel. Each individual English speaking country was forced to make their own digital master copy for Braille or Daisy at great cost, instead of a single English language master file that would be shared between all of the accessible publishing organizations. This means that “5 separate national Braille master files and 8 separate national Daisy audio master files” were made (World Blind Union Background Paper). If the transfer of digital master files were easily accomplished, the resources for four of those Braille master files and seven of those DAISY audio master files could have been put towards different titles.  

Current Scenario:

There are six major multi-national treaties dealing with copyright internationally, but the three most important to these negotiations are: 1. The Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention); 2. The WIPO Copyright Treaty of 1996 (WCT); and 3. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

These treaties establish baseline protections that each member country must provide for foreign copyright holders. None of these treaties establish any mandatory exceptions or limitations. Until the current push for the Treaty on Exceptions and Limitations to Benefit Print Disabled Persons - the negotiations happening here in Marrakesh, right now - all of the above treaties focused on greater protection, stronger enforcement and lengthening the term of copyright.

One of the main bones of contention at the current negotiation is over the so-called “3 Step Test” first established by the Berne Convention Article 9(2) (the Berne Convention also established a number of other specific enumerated exceptions in other Articles). It is possible to find an incarnation of the three-step test in every subsequent treaty relating to copyright, which expanded the three-step test to other rights protected by copyright. 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.”

What Next?

Currently, the content industry is pushing for the three step test to be reproduced in the Marrakesh treaty, and expanding its application from a general article on exceptions, that is read together with other specific and enumerated exceptions and limitations (for more information, please see the very helpful KEI list of provisions not subject to the 3 step test available here:

The World Intellectual Property Organization (WIPO) administers all copyright treaties except for TRIPS. 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, the International Federation of Library Associations, and of course G3ict (which is how I was able to be present here at the Marrakesh negotiation). The Standing Committee on Copyright and Related Rights (SCCR) is the committee that debates and negotiates any new international instruments relating to copyright.

TRIPS is administered at the World Trade Organization, and is primarily concerned with intellectual property in the context of trade. It has adopted much of the text of the Berne Convention, including the three-step test for exceptions. The creation of the WTO in 1996 brought many more nations into the basic protections outlined by the Berne convention. WIPO and the WTO have a “mutually supportive” relationship in regards to intellectual property rights.


Related Resource

Blog: Every Book Born Digital, Should be Born Accessible | Read Abigail Rekas's Blog on the WIPO Treaty.

Publication: Putting e-Accessibility at the Core of Information Systems | Download the G3ict Publication.