(by Colorado Law 3Ls Gabrielle Daley, Luke Ewing, and Lindsey Knapton)
Over the past two years the Samuelson-Glushko Technology Law and Policy Clinic (TLPC) has worked with Professor Caroline Ncube of the University of Cape Town and representatives of member states of the World Intellectual Property Organization (WIPO) to prepare a study on the implications of copyright law for people with disabilities around the world.
The 35th Session of WIPO’s Standing Committee on Copyright and Related Rights (SCCR) is fast approaching. This November 13-17, representatives from member states and non-governmental organizations from around the world will gather in Geneva, Switzerland to discuss international copyright policy. During this meeting, our team will present the findings of the study we’ve spent the better part of the last year preparing. As the November meeting nears, this post discusses the work we’ve done to date.
Our work with WIPO began after the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled—generally referred to as the Marrakesh Visually Impaired Persons (VIP) Treaty—an international agreement to increase access to books for persons with visual disabilities. The Marrakesh Treaty was negotiated by the member states of WIPO, and since its passage, has been heralded as a major success for people living with disabilities worldwide.
However, the Marrakesh Treaty is limited in several key ways that may leave copyright barriers to accessibility unresolved. In particular, the Treaty only calls for limitations or exceptions in national copyright law that cover action taken by or on behalf of people with visual or physical impairments to transform print materials protected by copyright. The Treaty started as a broader instrument, covering other disabilities and types of work, but the scope was narrowed during negotiations.
Meanwhile, a number of existing and burgeoning technologies are both being deployed and under development that may facilitate access to broad range of works for people with various disabilities. However, these technologies may still implicate exclusive copyright and related rights because they require making a copy, transforming, or adapting underlying copyrighted works. Some examples of accessibility technologies with potential copyright implications include
Screen readers aid those with visual or physical disabilities by describing the visual components displayed on a computer screen. By describing the text and images on the screen, the technology converts a visual work into an aural format. Refreshable braille displays enable people with visual impairments to read digitized text from a page by converting/translating the text into braille in real time. Closed captions serve a similar purpose by converting aural media into visual text for people with hearing impairments. Video description (also referred to as audio description) serves a purpose akin to screen readers by converting visual information from a video into an aural format.
New technologies with similar characteristics have the potential to improve accessibility. Ebooks can expand access to books for people with various disabilities. Digital assistants foster access to information for people with visual disabilities, but they can create their own accessibility problems for those with speech disabilities. Machine learning can improve the functionality of all these technologies while simultaneously facilitating breadth of access. Machine learning is also expected to be valuable in converting written works to plain-and-simple language, a format necessary for some people with cognitive disabilities.
After the VIP Treaty was signed, parties and member states expressed interest in continuing the discussion of international accessibility and requested an academic study on disabilities, copyrighted works, and technologies not covered by the Marrakesh Treaty. In Fall 2016, the TLPC and Prof. Ncube, began work on this study. Student attorneys Sean Doran, Andi Wilt, and Kiki Council drafted a survey, sent to member states in Spring 2017, to better understand how member states’ national laws address transformations of copyrighted works for people with disabilities.
Our team’s work began in January 2017 when we began to meet with representatives from groups that represent the interests of people with disabilities. These meetings informed our research on current and future barriers to content as technology shifts the means by which media is delivered to the consumer.
While awaiting the results of the survey, we drafted the preliminary study and presented our work to SCCR member states in May 2017. The goal of the trip was two-fold. While we were eager to explain the concerns of disability stakeholders, we also hoped the presentations would encourage member states to respond to the survey.
As of this month, we are in the process of finishing our analysis of member state responses and drafting the final study. However, our preliminary analysis reveals that member states have taken a diverse set of approaches to address the intersection accessibility and copyright. While some member states provide a statutory provision to allow people with all (or many) disabilities to undertake acts to make all (or many types of) copyrighted works accessible using various technologies, not all do.
While copyright law plays an important role in facilitating the proliferation of content, our meetings with disability rights organizations helped us better understand how copyright can also act as a barrier to access for people with disabilities. Representatives of people who are deaf or hard of hearing, blind or visually impaired, or those who have cognitive, intellectual, physical, or motor disabilities expressed that copyright law should advance alongside advances in technology.
In a few short weeks we’ll share the results of our analysis with representatives of the member states of WIPO. A key goal of our presentation is to continue to encourage member states to provide information about their national laws in order to obtain a more complete understanding of what limitations and exceptions to copyright law exist for people with disabilities after the Marrakesh treaty and how they intersect with accessibility laws. This information will be useful to member states as they make important policy decisions about international copyright law and access for people with disabilities.