wipo study on copyright limitations and exceptions for the visually impaired prepared by judith...

WIPO Study on Copyright WIPO Study on Copyright

Limitations and Exceptions Limitations and Exceptions

for the Visually Impairedfor the Visually Impaired

Prepared by Judith Sullivan,Prepared by Judith Sullivan,

Consultant, Copyright and Public AffairsConsultant, Copyright and Public Affairs

Judith SullivanJudith Sullivan 22

The challenge for visually The challenge for visually

impaired peopleimpaired people

Ordinary printed text is inaccessibleOrdinary printed text is inaccessible

Commercial large print and audio books Commercial large print and audio books

help some but titles are limitedhelp some but titles are limited

Electronic publications in principle could Electronic publications in principle could

be accessible but often are notbe accessible but often are not


Is there just one solution to give Is there just one solution to give

access?access?

NNo. The way in which visually o. The way in which visually

impaired people can access the impaired people can access the

printed word is very diverse.printed word is very diverse.


Visually impaired people need to read for Visually impaired people need to read for

reasons reasons just as diversejust as diverse as for as for

sighted people.sighted people.

Eg reading:Eg reading: - when studying- when studying

- for leisure- for leisure

- at work- at work

- to participate in hobbies- to participate in hobbies


The challenge for me!The challenge for me!

Identifying relevant international Identifying relevant international

conventions and treatiesconventions and treaties

Identifying exceptions in national lawsIdentifying exceptions in national laws

Identifying law relevant to import and Identifying law relevant to import and

export of accessible copiesexport of accessible copies


Why limit the Study to Why limit the Study to

visually impaired people?visually impaired people?

WIPO chose the scopeWIPO chose the scope

WBU lobbying on copyright WBU lobbying on copyright

No real reason to exclude others No real reason to exclude others

But needs and so solutions may differBut needs and so solutions may differ


What else the Study What else the Study

doesn’t do?doesn’t do?


The Study doesn’t address things The Study doesn’t address things

that also apply to sighted peoplethat also apply to sighted people

For example, where:For example, where:

a book is in the wrong languagea book is in the wrong language

a book has not been published in a a book has not been published in a

particular countryparticular country


And the Study doesn’t address And the Study doesn’t address

non-copyright issuesnon-copyright issues

For example:For example:

rehabilitation for late onset visual rehabilitation for late onset visual

impairment – learning Braille etcimpairment – learning Braille etc

lack of resources to buy readily available lack of resources to buy readily available

accessible copiesaccessible copies


But it’s not that simpleBut it’s not that simple

Issues of cost of accessible copies do Issues of cost of accessible copies do

arise in some national exceptionsarise in some national exceptions

Perhaps it’s not fair to leave out Perhaps it’s not fair to leave out

consideration of visually impaired people’s consideration of visually impaired people’s

income levels completelyincome levels completely


What’s in the Study - 1What’s in the Study - 1

An attempt to draw together earlier An attempt to draw together earlier

conclusions about exceptions permitted by conclusions about exceptions permitted by

international IP treaties and conventionsinternational IP treaties and conventions

Really difficult for exceptions for visually Really difficult for exceptions for visually

impaired people given the range of rights impaired people given the range of rights

and protected works that might be coveredand protected works that might be covered


What’s in the study - 2What’s in the study - 2

Analysis of national exceptions found – Analysis of national exceptions found –

analysed against the same criteria to find analysed against the same criteria to find

similarities and differencessimilarities and differences

Really difficult to ensure up-to-date law Really difficult to ensure up-to-date law

examined and interpretation accurateexamined and interpretation accurate



Analysis of distribution and importation Analysis of distribution and importation

rights to try and decide what cross border rights to try and decide what cross border

movement of accessible copies might be movement of accessible copies might be

possiblepossible

Really difficult for all the reasons above Really difficult for all the reasons above

and more!and more!



A number of case studies showing A number of case studies showing

problems and successes with giving problems and successes with giving

visually impaired people access to the visually impaired people access to the

written wordwritten word

Really inspiring regarding the successes Really inspiring regarding the successes

given the difficultiesgiven the difficulties



Analysis of the ‘copyright’ problems and Analysis of the ‘copyright’ problems and

possible solutions in the light of the legal possible solutions in the light of the legal

frameworks and case studies exploredframeworks and case studies explored

Hopefully the part that is of most use to Hopefully the part that is of most use to

WIPO Member StatesWIPO Member States


Analysis of the problems and Analysis of the problems and

solutions - introductionsolutions - introduction

Tries to raise some important points to Tries to raise some important points to

inform future discussions and actioninform future discussions and action

Don’t believe need total accuracy in the Don’t believe need total accuracy in the

earlier analysis of national laws to be a earlier analysis of national laws to be a

valid starting pointvalid starting point


The international frameworkThe international framework

IP treaties and conventions do not require IP treaties and conventions do not require

exceptions in this areaexceptions in this area

Conditions applying to exceptions Conditions applying to exceptions

benefiting visually impaired people may be benefiting visually impaired people may be

complicatedcomplicated


Solutions to deliver exceptions Solutions to deliver exceptions

for visually impaired peoplefor visually impaired people

Rely on accepted need for balance with Rely on accepted need for balance with

each country making own decisionseach country making own decisions

Explore obligations from UDHR/related Explore obligations from UDHR/related

initiatives, and relationship with copyrightinitiatives, and relationship with copyright

A new IP convention requiring exceptions, A new IP convention requiring exceptions,

or even rights or even rights


Are exceptions necessary?Are exceptions necessary?

Maybe not if material is published in Maybe not if material is published in

accessible formatsaccessible formats

Maybe not if converting to accessible Maybe not if converting to accessible

formats is readily licensedformats is readily licensed

But are these likely to be comprehensiveBut are these likely to be comprehensive

solutions in the foreseeable future?solutions in the foreseeable future?


But can exceptions ever be the But can exceptions ever be the

only answer?only answer?

Probably not - resources for activity under Probably not - resources for activity under

exceptions likely to be limitedexceptions likely to be limited

So built in accessibility as material is So built in accessibility as material is

published may be the idealpublished may be the ideal

And so may be better if exceptions are And so may be better if exceptions are

designed to encourage thisdesigned to encourage this


Other exceptionsOther exceptions

Not covered by this StudyNot covered by this Study

Could be helpful but unlikely to be Could be helpful but unlikely to be

comprehensivecomprehensive

But clarification of self-help copying by or But clarification of self-help copying by or

for individual visually impaired person for individual visually impaired person

helpful – what is legal needs to be clearhelpful – what is legal needs to be clear


National exceptions for the benefit National exceptions for the benefit

of visually impaired peopleof visually impaired people

Found in fewer than half of WIPO Found in fewer than half of WIPO

member Statesmember States

Wide variations in scopeWide variations in scope

Seem to be less common in Seem to be less common in

developing countriesdeveloping countries


Possible conditions in Possible conditions in

exceptionsexceptions


1. Defining the end beneficiary1. Defining the end beneficiary

Satisfies the 3-step test requirement that Satisfies the 3-step test requirement that

the exception is a ‘special case’?the exception is a ‘special case’?

May be better than, say, a limitation to May be better than, say, a limitation to

‘special’ accessible formats‘special’ accessible formats

Functional rather than medical definition Functional rather than medical definition

seems to work betterseems to work better


2. Defining what works can be 2. Defining what works can be

usedusedPossible options:Possible options:

- the type of copyright workthe type of copyright work

- whether the work has been publishedwhether the work has been published

- whether the exception whether the exception onlyonly applies when the applies when the

work is work is notnot available in an accessible format available in an accessible format


Relationship with commercially Relationship with commercially

published accessible formatspublished accessible formats

When, if at all, is activity under an When, if at all, is activity under an

exception in competition with what is exception in competition with what is

commercially available acceptable?commercially available acceptable?

Must recognise diverse needs of visually Must recognise diverse needs of visually

impaired people, eg commercial large print impaired people, eg commercial large print

should not rule out other formats neededshould not rule out other formats needed


3. Profit/non-profit making activity3. Profit/non-profit making activity

Non-commercial test might apply to:Non-commercial test might apply to:

- the body acting under the exceptionthe body acting under the exception

- charges for accessible copies madecharges for accessible copies made

- use of accessible formats by visually use of accessible formats by visually

impaired peopleimpaired people


4. Permitted/restricted acts4. Permitted/restricted acts

Many current exceptions seem limited to Many current exceptions seem limited to

making copies, ie not infringing the making copies, ie not infringing the

reproduction rightreproduction right

Reasonable activity to supply accessible Reasonable activity to supply accessible

copies to visually impaired people could copies to visually impaired people could

involve other restricted actsinvolve other restricted acts


5. Defining who may act5. Defining who may act

Implied by definition of activity permittedImplied by definition of activity permitted

Limited to named/registered/designated Limited to named/registered/designated

bodiesbodies

Defined by narrow category such as Defined by narrow category such as

disability organisationsdisability organisations

Defined by broad categoryDefined by broad category


6. Defining accessible formats6. Defining accessible formats

National laws vary - Braille only to no National laws vary - Braille only to no

limitationlimitation

More sensitivity for formats which are not More sensitivity for formats which are not

‘special’ – eg the same as commercially ‘special’ – eg the same as commercially

available large print and audio booksavailable large print and audio books

DAISY digital book very flexible but is it a DAISY digital book very flexible but is it a

‘special’ format? ‘special’ format?


Given diversity of needs may be better Given diversity of needs may be better

to not rule out any type of accessible to not rule out any type of accessible

format and use a format and use a functional functional

definitiondefinition for permitted formats, eg for permitted formats, eg

one that gives access equivalent to that one that gives access equivalent to that

enjoyed by a sighted personenjoyed by a sighted person


7. Compulsory licence/exception7. Compulsory licence/exception

Majority of countries have pure exceptions Majority of countries have pure exceptions

but need to look at scope of exception toobut need to look at scope of exception too

Remuneration to right holders could be for Remuneration to right holders could be for

some types of activity onlysome types of activity only

Half-way house where non-remunerated Half-way house where non-remunerated

exception could be overridden by licensingexception could be overridden by licensing


The 3-step testThe 3-step test

Quite common as an extra limitation in Quite common as an extra limitation in

national exceptionsnational exceptions

But how does this limit activity to help But how does this limit activity to help

visually impaired people in practice?visually impaired people in practice?

Could debate what is the most helpful way Could debate what is the most helpful way

to define exceptions in national lawsto define exceptions in national laws


Relationship with contractsRelationship with contracts

Should users enjoy just exceptions to Should users enjoy just exceptions to

rights or should they have rights too?rights or should they have rights too?

Does the digital environment make Does the digital environment make

this a more important issue?this a more important issue?


Other differencesOther differences

Quite a few – some restrictive some Quite a few – some restrictive some

helpful to usershelpful to users

But are differences between countries But are differences between countries

really justified?really justified?

– case studies suggest diverse needs of case studies suggest diverse needs of

visually impaired people everywherevisually impaired people everywhere


Accessible formats: export and Accessible formats: export and importimport

Would increase access for visually Would increase access for visually

impaired people – may be easy to agree impaired people – may be easy to agree

this muchthis much

What can currently be done and what What can currently be done and what

might be fair may be much harder to agreemight be fair may be much harder to agree


What is this about?What is this about?

Sending accessible copies direct to visually Sending accessible copies direct to visually

impaired people in another country?impaired people in another country?

Sending to intermediaries first?Sending to intermediaries first?

Sending master copies to intermediaries?Sending master copies to intermediaries?

Online dissemination of accessible formats Online dissemination of accessible formats

when nothing physical is ‘sent’?when nothing physical is ‘sent’?


More questionsMore questions

Does it matter if:Does it matter if:

What is ‘sent’ has not been published in What is ‘sent’ has not been published in

the receiving country?the receiving country?

Where a different version was published?Where a different version was published?

Where exceptions in the sending and Where exceptions in the sending and

receiving countries are different?receiving countries are different?


‘‘Export’ and ‘import’ involves the laws Export’ and ‘import’ involves the laws

of two countries – and to stay legal it of two countries – and to stay legal it

may be necessary for the exporting may be necessary for the exporting

country to know what will happen in the country to know what will happen in the

importing country and the importing importing country and the importing

country to know what happened in the country to know what happened in the

exporting countryexporting country


‘‘Export’ and ‘import’: solutionsExport’ and ‘import’: solutions

National legislationNational legislation

Licensing agreements:Licensing agreements:

– at national levelat national level

– at international levelat international level

International agreement on legislation:International agreement on legislation:

– guidance/draft lawsguidance/draft laws

– treaty/conventiontreaty/convention


Publishers’ e-filesPublishers’ e-files

Of great value to those making accessible Of great value to those making accessible

copies but greatly damaging to publishers copies but greatly damaging to publishers

in the wrong handsin the wrong hands

Not strictly a copyright issue, but could Not strictly a copyright issue, but could

legislate to give accesslegislate to give access

Building in trust may be essentialBuilding in trust may be essential


Digital rights managementDigital rights management

Very important issue in the digital worldVery important issue in the digital world

Not looked at in detail in this StudyNot looked at in detail in this Study

DRMs can help enable as well as prevent DRMs can help enable as well as prevent

and restrict access so can they deliver and restrict access so can they deliver

exceptions for visually impaired people?exceptions for visually impaired people?


Exceptions as the only solution?Exceptions as the only solution?

The World Blind Union campaigns forThe World Blind Union campaigns for

visually impaired people to have access tovisually impaired people to have access to

the the same booksame book, on the , on the same daysame day and at the and at the

same pricesame price as sighted people – exceptions as sighted people – exceptions

do not deliver that.do not deliver that.


Other solutionsOther solutions

Technology can both prevent Technology can both prevent and provideand provide

accessaccess

Encourage understanding, information Encourage understanding, information

sharing and collaboration to increase sharing and collaboration to increase

secure built-in access to the written word secure built-in access to the written word

for visually impaired peoplefor visually impaired people


TechnologyTechnology provides more and provides more and

more opportunities to deliver built in more opportunities to deliver built in

accessibility.accessibility.

ExceptionsExceptions to copyright can help to copyright can help

where this does not happen.where this does not happen.


ConclusionConclusion

Visually impaired people deserve a Visually impaired people deserve a

right to readright to read equivalent to that equivalent to that

enjoyed by people without an enjoyed by people without an

impairmentimpairment

Hope that the Study is useful to help Hope that the Study is useful to help

take the debate forwardtake the debate forward

Thank you for listeningThank you for listening

Judith SullivanJudith Sullivan

[email protected]@fsmail.net

wipo study on copyright limitations and exceptions for the visually impaired prepared by judith...

Documents

judith sullivan

rights slide

clear slide

complicated slide

exceptions likely

exceptions necessary

particular country slide

interpretation accurate