Krista L. Cox is the staff attorney for the nonprofit, nongovernmental organization, Knowledge Ecology International. She specializes in copyright and patents in the social justice context, particularly as they relate to access to knowledge and access to medicine issues. She can be reached at firstname.lastname@example.org.
The World Intellectual Property Organization (WIPO) has been considering several proposals for an international instrument to expand access to copyrighted information for persons who are blind, visually impaired, or have other disabilities. Although it has been discussed for nearly 30 years, a diplomatic conference to negotiate the text of such a treaty has yet to be convened.
Access to knowledge, such as that commonly found in the written word, is fundamental to a number of human rights that include, inter alia, the rights to take part in society, participate in cultural life, enjoy the benefits of scientific progress, exercise freedom of opinion and expression, seek and impart information, education, and employment opportunities. These rights are well recognized in numerous international instruments including the Universal Declaration on Human Rights; the International Convention on Economic, Social, and Cultural Rights; the International Convention on Civil and Political Rights; Convention on the Rights of a Child; and, most recently, the Convention on the Right of Persons with Disabilities (CRPD). Unfortunately, for persons with visual impairments or other disabilities, intellectual property laws may pose a barrier to these rights.
The CRPD, the first human rights treaty of the 21st century, had 82 signatories when it opened for signatures on March 30, 2007, earning this document the recognition of the largest number of signatories in history to a U.N. Convention on its opening day. The CRPD entered into force on May 3, 2008, and, as of the time of this writing, has 149 signatories (there are currently 193 U.N. Member States), of which 103 have ratified and are now considered parties to the Convention. The high number of signatures and quick ratification of the Convention emphasize not only the importance of the issue, but also suggest a large consensus that the CRPD, protecting the rights of persons with disabilities, is a vital legal norm that should be binding on states. The United States is currently one of the signatories, but has not yet ratified the CRPD.
Although each of the conventions mentioned above detail different provisions emphasizing the importance of access to knowledge and information, the CRPD specifically supports the creation of a treaty for the benefit of persons who are visually impaired to protect their rights to, inter alia, the full and effective participation and inclusion in society, equality of opportunity, and accessibility. Article 21, for example, mandates parties to “provide information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost.” Article 30.3 specifically references intellectual property barriers and requires parties to “take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials.” The CRPD, like other human rights instruments, recognizes the importance of international cooperation.
In order to promote access to knowledge and thus protect the fundamental rights, it is essential to address the barriers to accessible format works. Those who are visually impaired are often denied access to documents or works that are published in print form or on some electronic platforms. Accessible formats may take different forms, including older formats such as braille or an audio book, or newer technologies such as the text-to-speech mechanism on e-book readers or a refreshable braille system. However, only an extremely small fraction of published books—estimated at no more than five percent—are made in accessible formats for the visually impaired in high-income countries. This figure is even smaller in low-income countries, resulting in a “book famine” where persons with visual impairments have virtually no access to the vast majority of works.
Those living in developing countries have even less access to accessible format works than are available in the developed world due to the lack of limitations and exceptions to copyright that would permit the creation of these works as well as the lack of resources. A treaty that contains the robust exceptions provided for in developed countries such as the United States, and also permits cross-border sharing of materials, would help to address both problems.
In the United States, the creation of accessible formats of copyrighted material has long been accepted as fair use and helps break down barriers for persons with visual impairments domestically. The legislative history of the Copyright Act supports that creation and distribution for the benefit of persons who are visually impaired is fair use, and the Supreme Court confirmed in Sony Corp. of America v. Universal City Studios, Inc., that copying “of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying.”1
Although fair use encompasses a broad and varied area in which uses are not considered an infringement of copyright, U.S. law also provides for a number of specific exceptions and limitations to a copyright holder’s exclusive rights. One such exception benefits persons who are blind or have other disabilities. This limitation, also known as the Chafee Amendment, was added to the Copyright Act in 1996, and provides that the creation and distribution of accessible format works by an authorized entity (defined in the text to include braille, audio, or digital text for the exclusive use by blind or other persons with disabilities) is not an infringement of copyright.2 In the United States, accessible format works can therefore be produced and distributed without permission from the right holder, so long as the beneficiary is a person who is blind or otherwise disabled within the meaning of this exception. Operating under this exception, remuneration to the copyright owner is not required under U.S. law.
A treaty for persons who are visually impaired presents an area where the United States can advocate for the rights of persons with disabilities and lead by example. Such a treaty would build upon U.S. legal traditions that have made possible the creation and distribution of accessible versions of copyrighted works without needing to first obtain the permission of copyright owners. The U.S. Copyright Act helps to ensure that persons with disabilities have the access to knowledge necessary to support their full and effective participation in society on an equal basis with other individuals. Such access also promotes the development and utilization of the creative, artistic, and intellectual potential of persons who are visually impaired, not only for their own benefit, but for the enrichment of society.
This U.S. copyright exception is essential to the creation of accessible format works in our country. Efforts to license works from copyright holders have not been particularly successful, as publishers often do not respond in a timely manner and negotiations are often complex, involve restrictive provisions, and can be costly. For older works and “orphan works,” it is often difficult or impossible to identify and locate the right owner.
Although the United States has strong limitations and exceptions in its domestic copyright law, a WIPO survey found that only about one-third of countries worldwide have national exceptions to allow the creation and distribution of these accessible format works, the majority of these countries being in the developed world. Additionally, even for countries that do have these national exceptions, the strength of these provisions varies widely, and accessible format works cannot be shared across borders. Cross-border sharing is particularly useful for countries that share a common language, such as English, Spanish, French, or Arabic, and also useful for persons who read more than one language or who do not speak the native language of their country of residence.
Moreover, cross-border sharing would increase efficiency by allowing resources to be spent on the creation of new accessible format works rather than the unnecessary duplication of titles in each country. For example, under the current framework (that is, without a binding international agreement), a popular book such as Harry Potter and the Sorcerer’s Stone cannot be shared in accessible formats in countries that share a common language. Thus, the book must be separately created in an accessible format in the United States, then again in the United Kingdom, again in Canada, again in Australia, and so forth. The unnecessary duplication of books in each country wastes valuable time and money for a community already with limited resources. This problem is augmented for developing countries, where someone from a poorer country, such as Nicaragua, cannot benefit from the creation of an accessible format work made in a higher income Spanish-speaking country such as Spain or even Argentina.
The U.S.-based entity, Recording for the Blind and Dyslexic (RFB&D), for example, was advised that the copyright limitation existing under U.S. law does not apply extraterritorially. Even where another country permits import of accessible format works, U.S. law does not allow export of these works.
As a general rule, domestic laws apply within the confines of its national territory, and even those residing in a country with strong copyright limitations and exceptions cannot use these laws to benefit those in other countries. In order to adequately protect the rights of persons with visual impairments and provide accessible format works, a binding international instrument is necessary to ensure that countries have limitations and exceptions in their domestic laws and to permit the cross-border exchange of accessible works.
Such a treaty should provide for robust minimum global standards that build upon U.S. traditions and do not diminish the provisions of the Chafee Amendment. Given the rapidly changing digital movement, care should also be taken to ensure the rights are protected for works published in both paper and digital formats. Permitting the export and import of accessible format works, without overly burdensome procedures or obligations, would expand on U.S. law in a way that benefits the blind. Recognizing the differing legal traditions among WIPO member states, it may be necessary to permit a balance in some areas between global standards and national flexibility to best realize the intended benefits of the treaty.
A binding treaty for the benefit of persons who are visually impaired would be fully compliant with the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights, both of which permit member states to provide limitations and exceptions.3
Although some opponents claim that a binding treaty for the blind is “premature,” 30 years of discussions, negotiations, and studies at WIPO demonstrate otherwise. Persons with visual impairments or other disabilities have already waited long enough.
In 1982, the Working Group convened by WIPO and the United Nations Educational, Scientific, and Cultural Organization drafted Model Provisions Concerning the Access by Handicapped Persons to the Works Protected by Copyright. Three years later, Wanda Noel published a report for the Executive Committee for the Berne Convention and the Intergovernmental Committee of the Universal Copyright Convention, which emphasized the importance of national exceptions in copyright law for the benefit of persons with disabilities, but also noted that cross-border distribution of accessible format works created problems. In her report, she suggested that one way to solve these problems could be to “create an entirely new international instrument addressing both matters.”4 Since Noel’s report in 1985, the topic has continued to receive attention at WIPO, with additional studies performed and the subject of limitations and exceptions appearing on the agenda of the Standing Committee on Copyright and Related Rights (SCCR).
In the fall of 2008, the first draft of a treaty proposal—more than 20 years after Noel’s recommendations—was presented to WIPO and has been the subject of several meetings of WIPO SCCR since then. The World Blind Union’s (WBU’s) treaty contained provisions for minimum standards for limitations and exceptions to copyright and would facilitate the cross-border exchange of accessible format works for beneficiary persons. At the following SCCR, in the spring of 2009, Brazil, Ecuador, and Paraguay tabled a proposal based on the WBU’s text (Mexico and then Argentina joined the proposal at a later date). Subsequently, the United States, the European Union, and the African Group also tabled their own proposals.
The most recent WIPO SCCR (June 15–24, 2011) saw progress when various proposals were merged into a single text and signed by the United States as well as a diverse group of other countries including Argentina, Australia, Brazil, Chile, Colombia, Ecuador, the European Union and its member states, Mexico, Norway, Paraguay, Russia, and Uruguay. Ultimately, a chair’s document for persons who are visually impaired emerged, based on the single text that also incorporated comments from other countries.
This treaty proposal has garnered interest from the United States Senate, and on September 28, 2011, Senator Harkin (D-IA) and Senator Sanders (I-VT), representing chairman and senior member of the U.S. Senate Committee on Health, Education, Labor, and Pensions, submitted a letter to Director David Kappos of the United States Patent and Trademark Office (USPTO).5 Senators Harkin and Sanders urged the USPTO to support timely consideration of a treaty on copyright exceptions for the benefit of persons who are visually impaired or have other disabilities, citing strong support by the National Federation of the Blind, the American Council of the Blind, and other U.S. and international organizations.
After 30 years of discussions, WIPO should convene a diplomatic conference to begin negotiations on a binding legal instrument rather than taking a two-step approach where the chair’s text would only represent soft-law recommendations while discussions for a treaty would come at a later date. After more than a generation of waiting, persons who need accessible format works are asking for a diplomatic conference for a treaty to facilitate the creation and distribution of works. The book famine has a solution: build upon U.S. intellectual property legal traditions and protect the human rights of a vulnerable population, particularly for those living in developing worlds.
The Chafee Amendment, codified at 17 U.S.C. § 121, provides:
Limitations on exclusive rights: Reproduction for blind or other persons with disabilities. (a) Notwithstanding the provisions of section 106 [17 U.S.C. § 106], it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.
In order to have a treaty that will effectively address the book famine problem, two main features are needed:
To provide minimum standards for limitations and exceptions to copyright for persons who are blind,
visually impaired, or have other reading disabilities; and
To allow and encourage cross-border importation and exportation of works in accessible formats.
For additional information, background, and history, please visit the following websites:
1. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 455 (1984).
2. 17 U.S.C. § 121 (2011).
3. See, e.g., Comment of Daniel Gervais, Professor, Vanderbilt Univ. Law Sch., in Response to the Copyright Office Notice of Inquiry and Request for Comments on the Topic of Facilitating Access to Copyrighted Works for the Blind or Other Persons with Disabilities (Nov. 2, 2009), available at http://www.copyright.gov/docs/sccr/
4. Wanda Noel, Copyright Problems Raised by the Access by Handicapped Persons to Protected Works, IGC(1971)/VI/11 (1985), available at http://keionline.org/sites/default/files/noel_wipo_unesco_85_readable.pdf.
5. Krista Cox, Senators Harkin and Sanders Send Letter to USPTO Supporting the Treaty on Copyright Exceptions for Blind and Visually Impaired, Knowledge Ecology Int’l (Sept. 28, 2011), http://keionline.org/node/1282.