Access to Copyright Protected Works by Persons with Disabilities – Thoughts on the WIPO SCCR Scoping Study

This week, the WIPO Standing Committee on Copyright and Related Rights (SCCR) held its 38th Session in Geneva. The meeting documents released ahead of the Session included reports and analysis on Access to Copyright Protected Works by Persons with Disabilities; Copyright Limitations and Exceptions for Libraries; Copyright Practices and Challenges of Museums, Archives and Copyright; Practices and Challenges in Relation to Online Distance Education and Research Activities, etc.

This post presents an overview of and thoughts on the report concerning the Revised Scoping Study on Access to Copyright Protected Works by Persons with Disabilities (the Report). The Report, prepared by Professors Caroline Ncube (University of Cape Town) and Blake Reid (University of Colorado), builds on the 2017 WIPO Study, which involved sending out questionnaires to WIPO Member States and gathering data based on the responses.

Here is an overview of the Report:

Background
The Report acknowledges the contribution of the Marrakesh Treaty to the discourse on access to copyright-protected works by persons with disabilities but goes beyond the Treaty. It takes a “human rights” based conception of disability by defining several distinct, broad categories of disability in order to recognize common needs of persons with disabilities. See page 12. The study identified the following categories of disabilities: aural (deaf or hard of hearing); visual (“deafblind” or otherwise blind and hard of hearing); cognitive (e.g. dyslexics, autistic persons etc.); physical (persons with physical or motor disabilities that prevent physical interaction with protected material); multiple (several disabilities including those specifically mentioned categories).

In addition to identifying several categories of disabilities, the Report also considers that what would be an accessible format depends on the category of protected works and nature of disability.

Key findings
The Report presents the results from an independent research and analysis of the copyright statutes of each of the 191 WIPO Member States. In particular, it looks into the copyright national legal frameworks on the “topic of access by people with disabilities to works that are protected by copyright and related rights”.

Here are some of the key findings from an African perspective:

• 91 countries have no exceptions that address access by people with disabilities to works that are protected by copyright and related rights. Of these 91 countries, 39 are African countries including Kenya and South Africa. See Table 1 in the Report. 

•  28 countries have exceptions for all disabilities, as they do not specify the disabilities covered. Of these, only 2 (Gabon and Sao Tome and Principe) are African countries. 

• 25 countries have exceptions for persons with aural disabilities. Of these, only 4 (Cabo Verde, Cote d’Ivoire, Liberia, Uganda) are in Africa. 

• Cabo Verde is the only African country that provides exceptions for persons with cognitive/mental disabilities. There are 22 countries that provide this exception in their national copyright statutes. 

• Cote d’Ivoire is the only African country that provides an exception for persons with physical disabilities. There are 19 countries that offer this exception. 

• Approaches to addressing access to copyright-protected materials by persons with disabilities differ across jurisdictions. While some countries (e.g. Australia and Armenia) have general provisions that do not expressly mention disability but are broadly worded as to include accessibility for persons with disabilities, others have specific provisions that spells out the relevant disabilities. 

• Fair use provisions that indicate criteria for assessing “fairness” of use are considered as generally protective of persons with disabilities and their unique accessibility needs. Countries in this category include the US, Israel, Dominica, Kyrgyzstan, Micronesia, and Sri Lanka. There is no African country in this category. 

• Similarly, fair dealing provisions such as those in Australia and Canada that enumerate the making of accessible formats in the exhaustive list of permitted uses are also considered appropriate for persons with disabilities.

Some thoughts
What does this Africa Correspondent think of all these?
(i) Addressing specific socio-economic problems: If as the Report rightly identifies, disabilities and accessibility issues affect developing countries (lots of African countries) more adversely, would it be advisable to make provisions to ensure that the exceptions continue to apply even when protected works are fixed ab initio in an accessible format? The fixation eligibility criterion is usually broad enough to include fixation in a format accessible for persons with disabilities. In these circumstances, it is important to couch the exceptions for persons with disabilities in a manner that a copy of a work already available in an accessible format can be made. Otherwise, it may be possible that authors and copyright owners who create and/or make available work in an accessible format may exploit such “unique selling proposition”. Such exploitation may involve prohibitive licensing costs that may limit the usefulness and accessibility of the work for persons with disabilities. Where the exceptions provided for the benefit of persons with disabilities are specific such as in the case of the EU Directive on the Marrakesh Treaty, it appears the exceptions apply specifically to permit making copies of works in an alternative form that may be accessible to persons with disabilities. See Articles 2(3) and 3. The question is: what of works that the author or copyright owner has already made in an accessible form? Can copies of such work be lawfully made in another (yet) accessible form under the exception?

(ii) In retrospect, is copyright law blind (no pun intended) to some marginalised entities and constituencies? Isn’t it surprising how “disability-blind” copyright laws started out in the first place? And while on the subject of “marginalized entities”, this Africa Correspondent can say that her surprise is not unique. Others have expressed surprise at the “extent to which copyright and other IP laws have, for so long, been able to remain relatively insulated from feminist critique”. In a region such as Africa where issues of social inequality, power disparities, privilege and subordination may affect citizens disproportionately, it is expedient to closely scrutinise copyright laws for ways to address these issues. 

(iii) Still on marginalised constituencies, it is good to see methodology that goes through several iterations as researchers understand the problems better and ask the right questions for the right answers. In the present Report, it is admirable that the researchers built on the results from the 2017 study and conducted an analysis of the legal framework for the subject of accessibility. Ultimately, it is the law and its interpretation/construction that would determine the extent to which marginalised constituencies can lawfully operate.

(iv) Persons with aural disabilities would benefit from accessible formats like subtitles for audio-visual works. It is noted that appropriate subtitles may include translations where the subtitles are not verbatim subtitles of the spoken word. African proverbs and expressions are not usually susceptible to literal translations. Also, subtitles need to be in languages that the persons with (aural) disabilities can read and understand. In the light of these, it would be right to presume that the person creating the subtitles (the captioner) has some work on his/her hands. As a result, fair dealing provisions that mandate attribution are a good way to recognise such skill and efforts. Hopefully, the captioner would command more remuneration from the person commissioning the subtitling as the captioner’s profile rises. In my dreams? The Report notes that the rise of artificial intelligence (AI) and machine learning may help mitigate the costs of captioning. See page 16. Does this put the livelihood of captioners at significant risks?

(v) Content Context is king. The report epitomises this expression as it notes that exceptions and limitations for educational activities and libraries and archives, respectively do not, on their own, adequately serve persons with disabilities. See page 18 of the Report. Such exceptions and limitations rarely require the making of accessible formats. As such, they would need additional provisions for making an accessible format of a work in a manner that will enable it to be used in the applicable context. In other words, a format is not truly accessible if it is not accessible for the purpose and context for which it is made.

(vi) With ingenuity, the Marrakesh Treaty can be construed or implemented broadly. Indeed, there is nothing that says Member States ratifying the Treaty cannot go beyond the “call of duty” to address disabilities and contexts peculiar to their individual environment. In the case of South Africa’s ongoing debate on its Copyright Amendment Bill, its National Council of Provinces (NCOP) have had the opportunity to consider how the Bill could ratify Marrakesh Treaty in a way that suits the South African context. Nigeria has ratified the Treaty and key aspects of the Treaty are available in its Copyright Bill currently before the National Assembly. Commentators have always urged due care and consideration of national peculiarities in ratifying international treaties.

We await the report on the Session and outcomes of the deliberations and actions to follow in the international, regional and national copyright scenes.