wipo study on copyright limitations and exceptions for the visually impaired prepared by judith...
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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
Judith SullivanJudith Sullivan 33
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.
Judith SullivanJudith Sullivan 44
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
Judith SullivanJudith Sullivan 55
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
Judith SullivanJudith Sullivan 66
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
Judith SullivanJudith Sullivan 77
What else the Study What else the Study
doesn’t do?doesn’t do?
Judith SullivanJudith Sullivan 88
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
Judith SullivanJudith Sullivan 99
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
Judith SullivanJudith Sullivan 1010
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
Judith SullivanJudith Sullivan 1111
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
Judith SullivanJudith Sullivan 1212
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
Judith SullivanJudith Sullivan 1313
What’s in the Study - 3What’s in the Study - 3
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!
Judith SullivanJudith Sullivan 1414
What’s in the Study - 4What’s in the Study - 4
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
Judith SullivanJudith Sullivan 1515
What’s in the Study - 5What’s in the Study - 5
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
Judith SullivanJudith Sullivan 1616
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
Judith SullivanJudith Sullivan 1717
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
Judith SullivanJudith Sullivan 1818
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
Judith SullivanJudith Sullivan 1919
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?
Judith SullivanJudith Sullivan 2020
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
Judith SullivanJudith Sullivan 2121
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
Judith SullivanJudith Sullivan 2222
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
Judith SullivanJudith Sullivan 2323
Possible conditions in Possible conditions in
exceptionsexceptions
Judith SullivanJudith Sullivan 2424
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
Judith SullivanJudith Sullivan 2525
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
Judith SullivanJudith Sullivan 2626
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
Judith SullivanJudith Sullivan 2727
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
Judith SullivanJudith Sullivan 2828
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
Judith SullivanJudith Sullivan 2929
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
Judith SullivanJudith Sullivan 3030
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?
Judith SullivanJudith Sullivan 3131
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
Judith SullivanJudith Sullivan 3232
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
Judith SullivanJudith Sullivan 3333
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
Judith SullivanJudith Sullivan 3434
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?
Judith SullivanJudith Sullivan 3535
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
Judith SullivanJudith Sullivan 3636
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
Judith SullivanJudith Sullivan 3737
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’?
Judith SullivanJudith Sullivan 3838
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?
Judith SullivanJudith Sullivan 3939
‘‘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
Judith SullivanJudith Sullivan 4040
‘‘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
Judith SullivanJudith Sullivan 4141
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
Judith SullivanJudith Sullivan 4242
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?
Judith SullivanJudith Sullivan 4343
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.
Judith SullivanJudith Sullivan 4444
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
Judith SullivanJudith Sullivan 4545
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.
Judith SullivanJudith Sullivan 4646
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