DOCTRINE
THE ROLE OF EXCEPTIONS TO COPYRIGHT IN
PROMOTING EQUITABLE ACCESS TO INFORMATION
AND THE FULL SOCIAL INTEGRATION OF BLIND AND
PARTIALLY SIGHTED PEOPLE INTO SOCIETY
Initial Submission by the World Blind Union (WBU)
1. Summary
1.1 The World Blind Union is a world-wide non-government organisation with
established credentials in this field.
1.2 Full and equitable access to information is essential to the social inclusion of
blind and partially sighted people, and the application of copyright exceptions has a
vital role to play in ensuring such access.
1.3 There are some 180 million blind and partially sighted people in the World, who
access material via a variety of tactile, visual and aural means.
1.4 Exceptions to copyright are essential if they, and non-profit agencies working on
their behalf, are not to be impeded in producing and distributing appropriately
modified formats.
1.5 The digital environment has the potential to greatly enhance visually impaired
people’s access to information, but only if copyright regulations keep up with it.
1.6 Legislation at national level is essential, but an accumulation of national
legislation is not enough. International agreements on the free transfer of modified
files is also required.
1.7 Technological protection measures pose a threat which must be overcome.
1.8 Licensing is not a valid solution.
Copyright Bulletin
June 2003
2. Introduction
2.1 The World Blind Union welcomes the opportunity to participate, as an expert
non-government organisation, in UNESCO’s Study on the Fair Use of Limitations
and Exceptions to Copyright and Neighbouring Rights in the Digital Environment.
2.2 The World Blind Union (WBU) strives to improve the lot of people with a visual
impairment throughout the World and to promote their full inclusion in the life of
their communities. We have affiliates in more than 160 countries.
2.3 We enjoy consultative status with the United Nations, as well as permanent
observer status with the World Intellectual Property Organisation (WIPO).
2.4 Access to information is a key issue for blind and partially sighted people. It is
an essential part of achieving full participation In education, employment and the
cultural heritage. The manner in which copyright restrictions or exceptions are
applied is an important element in determining the extent to which copyright acts as a
barrier to such inclusion. The manner in which rights are technologically protected or
digitally managed has also assumed great importance in this regard in recent years.
2.5 Meeting at its General Assembly in Melbourne, Australia, on 24 November 2000,
WBU called on WIPO, UNESCO and rights holders organisations to collaborate in
the formulation of detailed national and international legislation which would afford
full and equitable access by blind and partially sighted people to all copyright-
protected material, without threatening the legitimate interests of authors and
publishers.
2.6 We have been represented at meetings of WIPO’s Standing Committee on
Copyright and Related Rights, and our European regional affiliate has taken a close
interest in the development of the European Union Copyright Directive.
2.7 Accordingly, we look forward to continued involvement in the current UNESCO
Study, to attending hearings and to offering expert information and advice. We would
be happy to ask our affiliates in different regions to take part in the planned regional
studies.
2.8 We acknowledge that some other groups of disabled people have an interest in
exceptions to copyright, and do not wish in any way to play down the significance of
their interests. However, WBU feels qualified to speak only on behalf of blind and
partially sighted people.
Terminology.
2.9 Please note that in this submission the terms “blind and partially sighted people”
and “visually impaired people” are used interchangeably.
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2.10 We use terms such as “alternative formats” or “accessible formats” to describe
material modified in such a way as to render it fully “readable” by someone with a
visual impairment.
3. Numbers and Characteristics of Visually Impaired People.
3.1 We estimate that some 180 million people in the World have a significant and
uncorrectable visual impairment. They are not a homogenous group. Some are
totally blind, many more have some useful vision. The age of onset of disability, the
amount of rehabilitation received and the facilities at the individual's disposal will
influence, among other things, the ways in which they are able to read. While visual
impairment is predominantly a feature of old age in “Western” countries, it is
prevalent throughout all age groups in many societies.
4. How do blind and partially sighted people read?
4.1 A person with a visual impairment who cannot adequately see material in its
original form on a page or on a computer screen needs to have the presentation of the
material modified. He needs to read using touch (primarily braille), audio or enlarged
print, or via a computer using technology which transfers material into audible or
tactile form, or enlarges the display. Graphical or pictorial information may have to
be described in words to be accessible. Thus the presentation of the information is
modified, but the content is not. People with a visual impairment may well use
different formats in different situations.
4.2 Rights holders rarely produce versions of their work in formats accessible to
visually impaired people. There is no commercial market for material in braille. The
commercial market in unabridged audio and in large print is relatively small.
4.3 Even commercial publication in these formats may have their limitations for
visually impaired readers. For example, “large print” will not be large enough for
everybody. Publishers that do produce “large print” have to choose a specific size and
style of font. This will be helpful to a number of people, but not to all those with
limited vision. It may therefore still be necessary to create a version of a work in a
particular print size for a given individual.
4.4 In the case of audio, some people may require more than just a straightforward
reading of the text. If they are engaged in study, they may need to know how to spell
particular words or names, or have access to a different edition from that available
commercially, for example one with annotation. They may also need the addition of
navigation features to help them move around the work in a non-linear manner. These
features include bookmarking, search and retrieval, achievable with digital audio, or
the “cue and review” feature found on some analogue tape players.
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5. The Case for Exceptions to Copyright
5.1 Accessible formats generally have to be created either by the visually impaired
person himself, or by a third party. In the absence of relevant legislation, each act of
transfer into an alternative format requires the explicit permission of the rights holder.
Permission can be refused, and is often delayed
5.2 International treaties such as the Berne Convention, the World Copyright Treaty
(WCT) or the Trade Related Intellectual Property Rights (TRIPS) Treaty do permit
individual member states to introduce exceptions into their copyright legislation for
the benefit of (inter alia) disabled people, within certain constraints. However, only a
minority of countries have done this.
5.3 The so-called Three Step Test found in the Berne Convention and its successors
are acceptable to us. We need exceptions to cover activities which are not profit-
making and which therefore do not constitute a threat to the legitimate interests of the
rights holder or to “normal exploitation” of the work. If truly accessible material is
available under the same terms as other versions, we would be happy to buy or
borrow it alongside everyone else.
5.4 We believe that it is no longer adequate for these treaties merely to permit
individual states to introduce exceptions. Blind and partially sighted people
throughout the World are demanding the same rights as their sighted peers to read all
published material at the same time and at no extra cost. Every nation in the World
should have legislation of this sort. It is unacceptable that a blind person in one
country may be able to access material while one in another country, even a
neighbouring country sharing the same language, is prevented from doing so.
6. How has the digital age changed things?
6.1 It may be helpful at this stage to examine the way in which digital technology has
affected access to information by people with a visual impairment.
6.2 The Information revolution offers tremendous potential advantages to visually
impaired people and those working on their behalf. We do not anticipate that disks
and the Internet will replace braille, large print or audio, any more than they will
replace conventional print. On the contrary, they make the production of those
formats easier and faster, while increasing and diversifying the routes to information
available to those with a reading disability.
6.3 The electronic age does not mean that thought or creativity have changed, merely
the means of conveying them. Hence, the rights of creators, and the rights of visually
impaired people, have not changed either. They simply need to be codified in a fresh
light. However, given that the rights of blind and partially sighted people have not
always been recognised in copyright regimes, they need to be asserted as well as
codified. The potential advantages of the Information Society make this work all the
more crucial.
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6.4 We examine below some of the situations in which electronic means of storage,
processing and distribution can act to the benefit of visually impaired people,
assuming copyright barriers are not erected.
Production Methods and Intermediate Copies.
6.5 Agencies producing Braille or large print now routinely do so by keying or
scanning the original material into a computer, subjecting it to translation software,
and producing it via a braille embosser or a laser printer. In the process, an
“intermediate” electronic copy is produced. It makes sense to keep this in case re-
prints are required, a document is updated, or something originally requested in large
print is later needed in braille. Copyright law therefore needs to realise that these
electronic files are not copies of the work in the conventional sense, but merely the
means to an end.
Easier Production.
6.6 The use of PC’s and relatively inexpensive peripherals has made braille and large
print production potentially much less expensive and therefore open not only to the
large welfare organisations but also to much smaller entities such as branch libraries
or local voluntary groups. In the “permission” regime still prevailing in many
countries, this will lead to copyright anarchy or administrative overload if copyright
legislation is not improved.
Digital Audio.
6.7 Just as Braille and large print publication is becoming increasingly electronic, so
is audio production. The international “Daisy” consortium (Digital Audio
Information Systems) has established an international set of standards for recording
and playing back audio files. Recordings made by the human voice can be digitised
and rendered susceptible to annotation, indexation, search and retrieval. Playback
software is available, and dedicated playback equipment is on the market offering
varying degrees of sophistication and flexibility. A growing amount of material will
be distributed in this format. This development presents a much more flexible means
of presenting material in an audio format, overcoming all the drawbacks of linear
access to text on tape and escaping from obsolescent analogue technology.
Modifying Presentation but not Content.
6.8 Alternative format material has always been modified in one way or another. The
braille page layout will always differ from the print. Audio tapes have index tones
added, or tables explained. With digitised text, a great deal of helpful indexing is
possible. This may equate to a detailed index at the back of a print book, or may go
beyond it. Copyright legislation needs to differentiate between alterations to the
intrinsic nature of the text, over which the originator is entitled to retain control, and
adaptations which are designed solely to facilitate access by a visually impaired
reader, which should always be allowed.
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Advantages of Electronic Copies.
6.9 A growing number of visually impaired people with access to personal computers
now want their version of a work, or at least their initial version, on computer disk.
By dint of the use of assistive technology such as speech synthesis, temporary braille
displays or enlarged character displays, or a combination of these, electronic media
offer great flexibility of access. They enable the user to decide which parts of a work,
if any, they wish to study in detail, and perhaps study in hard copy format, modified to
their individual requirements. While electronic texts offer similar advantages to the
population at large, these advantages are greatly magnified in the case of any print
disabled user. The electronic version may be the only one they can access, either for
practical reasons linked to the drawbacks of hard copy formats, or because most
material will for some time remain unavailable in any hard copy alternative formats
without some intervention on the part of the end-user. It is therefore quite legitimate
for an agency to send a visually impaired person an electronic version of a title, on
disk or via the Internet, rather than a braille, audio or large print version. Copyright
law needs to recognise this.
The Use of the Internet
6.10 The Internet will be put to many uses. Agencies will wish to reduce their use of
the postal system by sending electronic mail rather than disks, and by sending
modified material to individuals or other organisations.
6.11 The international nature of the Internet makes inter-library transfer of alternative
formats a reality. A file already formatted for the braille or large print production of a
title can be sent over the Net to an agency or to an individual on the other side of the
World (if, indeed, the World has sides). Similarly, the catalogues of libraries can be
accessed, and national bibliographies or union catalogues will be available to all. This
should reduce the incidence of unnecessary duplication or situations where people fail
to gain access to a text because they cannot know that it has already been produced in
an alternative format elsewhere. However, this will not be of much benefit if
copyright provision for visually impaired people has no international dimension.
7. National and International dimensions
7.1 As mentioned above, the digital age knows no frontiers, and legislation limited to
one jurisdiction can hamper international collaboration. Today’s Information and
Communications Technology (ICT) has made it easier for people to access the global
library of information wherever they live. It is also making it potentially easier for
alternative format producers to share resources and help reduce the gap between what
is available to sighted people and what is available to blind people. It should no
longer be necessary for a title to be re-formatted for, say, digital audio or braille in
every single country where it is to be read.
7.2 Yet copyright is increasingly being managed at a global level, and without an
international agreement on exceptions to exclusive rights for the benefit of blind and
partially sighted people, this is exactly what will continue to happen.
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8. Technological Protection measures
8.1 The growth in the use of copy protection measures and digital rights management
schemes now poses a new threat to blind and partially sighted readers.
8.2 The speech facility integral to some proprietary electronic book readers has the
potential to open books to visually impaired people, but it is frequently disabled by
the publisher so that the book remains effectively closed.
8.3 In addition, most if not all forms of digital rights management currently in use are
designed in such a way as not to be accessible by people using assistive technology.
The blind reader needs to be able to manipulate the text in some way to make it
accessible, and the rights management applications prevent this.
8.4 It is essential that the publishing and ICT industries agree on improved design
and presentation standards, and that
8.5 Governments intervene where this does not happen to give access to protected
works to those with a visual impairment.
9. Rights for All
9.1 The Terms of Reference for the current UNESCO in-depth study point out that
copyright is recognised as a human right in Article 27 of the United Nations Universal
Declaration of Human Rights. However, access to information is also a fundamental
right, recognised in Article 19 of that same Declaration. Furthermore, Rule 5.6 of the
United Nations Standard Rules on the Equalisation of Opportunities for People with
Disabilities stresses the importance of access to information in alternative formats.
9.2 We acknowledge the legitimate rights of authors and publishers, and believe we
pose no threat to their moral or economic interests. The creation of alternative
formats is generally undertaken from charitable funds or through Government social
funding, and does not conflict with commercial interests. Where an alternative format
edition is commercially viable, we welcome its production on a commercial basis by
the rights holder, and would not seek to produce an identical copy under an exception
to copyright.
9.3 It is in the interests of blind and partially sighted readers that sources are
acknowledged and nothing is done to mar the integrity of the work or otherwise
compromise the creator’s moral rights.
10. The Role of Licences
10.1 We acknowledge that licences or licensing schemes may in some circumstances
bring advantages to those engaged in the production of alternative formats. They
could, for example, incorporate agreements under which publishers would provide
authentic electronic files that would assist the production process.
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10.2 However, licensing is no substitute for rights. It implies that the rights holder
can retain control and determine on what terms blind or partially sighted people read
material readily available to others. Charging the producers of alternative formats for
access to material would rarely if ever be justified, since the production and
distribution process will be conducted on a non-profit basis and will relieve the
publisher of any duty to provide accessible material themselves.
10.3 Licensing is not an alternative to a fair and equitable copyright regime, though it
may sometimes be able to complement it.
11. Solutions
11.1 We are calling for a change in the framework of copyright throughout the World
to ensure that people with a visual impairment can gain access to visual material in a
non-visual or a visually modified form. They should be able to do this without
breaking the law or being delayed by the need to comply with laws that are
inappropriately formulated.
11.2 We need national legislative regimes that are harmonised to ensure consistency
for organisations, individuals and rights holders, protecting rights holders from
exploitation while protecting visually impaired people and their agencies from
unjustified barriers.
11.3 National legislation should incorporate the following features. It should:-
a) assert visually impaired people’s right to equitable access to all published
information;
b) enshrine rights, and not merely create vehicles for permission;
c) not be tied to particular formats or particular technologies;
d) be future proof;
e) focus on the individual end-user, not the format;
f) take account of the fact that alternative formats may be legitimately produced by a
wide range of organisations and by individuals;
g) acknowledge that access may be sought at or from home, school, workplace,
library or any other context.
h) acknowledge that the creation of alternative format versions from lawfully
acquired originals on a non-profit basis, with controlled distribution amongst
visually impaired people, does not constitute an infringement of copyright and
thus requires no permission.
11.4 We need international treaties that allow the creation of non-commercial
alternative, accessible versions and their free flow across international boundaries.
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11.5 We need international treaties and harmonised national legislation which
empowers member states to oblige rights holders to make available to bona fide blind
and partially sighted people, and agencies working on their behalf, accessible versions
of material ordinarily presented to the public wrapped in any form of rights
management scheme, or protected by some other technological measure which
renders them inaccessible to us.
11.6 UNESCO, WIPO, the World Trade Organisation and individual governments all
have an important role to play in achieving these aims. We hope UNESCO will feel
able to put its full weight behind them.
World Blind Union, July 2002
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