This note discusses the issue of who should benefit from a WIPO treaty for reading disabled persons. Should it only be people who are blind and visually impaired, as some propose, or should it be more inclusive with regard to other disabilities?
In the World Blind Union Proposal for a WIPO Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons (October 2008), a group of experts agreed to propose the following language:
Article 15. Disabilities Covered
(a) For the purposes of this Treaty, a ‘visually impaired’ person is:1. a person who is blind; or
2. a person who has a visual impairment which cannot be improved by the use of corrective lenses to give visual function substantially equivalent to that of a person who has no visual impairment and so is unable to access any copyright work to substantially the same degree as a person without a disability.
(b) Contracting Parties shall extend the provisions of this Treaty to persons with any other disability who, due to that disability, need an accessible format of a type that could be made under Article 4 in order to access a copyright work to substantially the same degree as a person without a disability.
Christopher Friend
This language is consistent with recommendations by Judith Sullivan in STANDING COMMITTEE ON COPYRIGHT AND RELATED RIGHTS Fifteenth Session Geneva, September 11 to 13, 2006 STUDY ON COPYRIGHT LIMITATIONS AND EXCEPTIONS FOR THE VISUALLY IMPAIRED. She wrote “The best way to define the end beneficiary is likely to be by using a functional definition. A functional definition would be based on a person’s inability to read the material that has already been published.” (page 111)
George Kerscher
It is also consistent with George Kerscher, Secretary general of the DAISY Consortium, also working for the non-profit Recording for the Blind & Dyslexic (RFB&D). George Kerscher began working on document access in 1987 and coined the term “print disabled” to describe people who cannot effectively read print because of a visual, physical, perceptual, developmental, cognitive, or learning disability.
Finally, if you look at the existing definitions of the reading disabled persons who are beneficiaries of copyright exceptions in various national laws, it is still consistent and makes a lot of sense.
FYI here are some examples from the US, EU, Canada, UK, Denmark and Australia, to mention a few:
In the United States: “blind or other persons with disabilities”
The Chafee amendment to chapter 1 of title 17, United States Code, adds section 121, establishing a limitation on the exclusive rights in copyrighted works. The amendment allows authorized entities to reproduce or distribute copies or phonorecords of previously published nondramatic literary works in specialized formats exclusively for use by blind or other persons with disabilities.
In the EU: “people with a disability”
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
5. 3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:
snip
(b) uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;
In Canada, Section 32 of the Copyright Act of 1997: ” Persons with Perceptual Disabilities”
Persons with Perceptual Disabilities
32. (1) It is not an infringement of copyright for a person, at the request of a person with a perceptual disability, or for a non-profit organization acting for his or her benefit, to
(a) make a copy or sound recording of a literary, musical, artistic or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability;
(b) translate, adapt or reproduce in sign language a literary or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability; or
(c) perform in public a literary or dramatic work, other than a cinematographic work, in sign language, either live or in a format specially designed for persons with a perceptual disability.
In the United Kingdom, the Visually Impaired Persons, Act 2002:
A visually impaired person is defined broadly, as a person
(a) who is blind;
(b) who has an impairment of visual function which cannot be improved, by the use of corrective lenses, to a level that would normally be acceptable for reading without a special level or kind of light;(c) who is unable, through physical disability, to hold or manipulate a book; or
(d) who is unable, through physical disability, to focus or move his eyes to the extent that would normally be acceptable for reading.
In Denmark: Section 17 of the Danish Copyright Act of 2003: “blind, visually impaired, the deaf and sufferers from speech impediments, and besides persons who on account of a handicap are unable to read printed text.”
17.(1) It is permitted to use and distribute copies of published works if the use and the distributed copies are specifically intended for the blind, visually impaired, the deaf and sufferers from speech impediments, and besides persons who on account of a handicap are unable to read printed text
In Australia, the Copyright Act of 1968, as amended, defines Print Disabled as follows:
COPYRIGHT ACT 1968 – SECT 10
Interpretation
“person with a print disability” means:
(a) a person without sight; or
(b) a person whose sight is severely impaired; or
(c) a person unable to hold or manipulate books or to focus or move his or her eyes; or
(d) a person with a perceptual disability.
Many other countries also are inclusive in terms of the disabilities covered by copyright exceptions.
Perhaps the most important standard is that incorporated in the UN Convention on the Rights of Persons with Disabilities
Article 1 Purpose
The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.