Next week, the WIPO Standing Committee on Copyright and Related Rights (SCCR 23) will meet beginning on 21 November and continue through 2 December 2011. One issue that will be discussed is a possible treaty for copyright limitations and exceptions for persons who are visually impaired or have other disabilities. A treaty is necessary to provide minimum standards for limitations and exceptions to permit the creation of accessible format works and also to facilitate cross-border sharing of these works. However, the United States and European Union have been blocking recommendations that WIPO convene a diplomatic conference on this issue. Instead, the US and EU have advocated for a “two-step” approach in which “soft-law” recommendations would be created and negotiations for a binding legal instrument would come at some later date. “Soft-law” is not an appropriate solution in this context and would likely cause a loss in momentum for what is an important issue. The “soft-law” approach has been attempted previously in the human rights context, but the plethora of binding international instruments on human rights that were subsequently adopted illustrates the need for “hard-law” solutions.
The UN Special Rapporteur on the Right to Freedom of Opinion and Expression recently advocated for a WIPO binding treaty on copyright limitations and exceptions for persons who are visually impaired or have other disabilities. In doing so, he noted that freedom of expression and opinion is a human right, citing Article 19 of the Universal Declaration of Human Rights. As discussed below, many of the rights that are dependent upon access to copyrighted works flow from this right to freedom of opinion and expression which “includes freedom to hold opinions without interference and, to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The Universal Declaration on Human Rights, adopted in December 1948, arose in response to the atrocities of WWII and was designed to express inherent and fundamental human rights. Although the Declaration contained thirty articles, they were soft-law provisions only and, ultimately, a number of hard-law, binding international human rights treaties were subsequently created to ensure that important human rights could be enforced. For example, eighteen years after the Declaration’s adoption, in 1966, two hard-law treaties were created: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). It took another ten years after the adoption of the ICCPR and ICESCR before enough states had ratified the treaties (in 1976) for the instruments to go into force. Twenty-eight years after the Universal Declaration on Human Rights was adopted by the UN, protections of human rights became legally binding.
Although the Universal Declaration on Human Rights was an extremely important document and its provisions are often copied verbatim or expanded upon in subsequent human rights treaties, the need for additional binding legal instruments has proven necessary to ensure that states respect these rights. If the soft-law provisions of the Declaration were sufficient to protect and promote human rights, we would likely not need the multitude of binding human rights treaties that followed.
A binding treaty for the benefit of persons with visual impairments or other disabilities would promote the rights of these persons. It would build upon the soft-law provisions of the Declaration and, significantly, provide for specific minimum limitations and exceptions to copyright in order to promote the legal obligations of parties to these subsequent binding human rights treaties.
According to the UN High Commissioner for Human Rights, there are nine “core” international human rights treaties (and their protocols) which include:
- International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 21 Dec 1965)
- International Covenant on Civil and Political Rights (ICCPR, 16 Dec 1966)
- International Covenant on Economic, Social and Cultural Rights (ICESCR, 16 Dec 1966)
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 18 Dec 1979)
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 10 Dec 1984)
- Convention on the Rights of the Child (CRC, 20 Nov 1989)
- International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW, 18 Dec 1990)
- Convention on the Rights of Persons with Disabilities (CRPD, 13 Dec 2006)
- International Convention for the Protection of All Persons from Enforced Disappearance (CPED, 20 Dec 2006)
The United States has signed seven of these core treaties: ICERD, ICCPR, ICESCR, CEDAW, CAT, CRC, and CRPD, meaning that it is general agreement with the convention. However, the United States has only ratified the following three: ICERD, ICCPR and CAT. During his 2008 campaign, Obama pledged to make the United States a signatory to the Convention on the Rights of Persons with Disabilities (CRPD) which he did on July 24, 2009. However, he also pledged to “urge the U.S. Senate to ratify the Convention expeditiously.” According to the U.S. Department of State website, CRPD was never submitted for Senate ratification.
Access to accessible format works is a human right for those with visual impairments or have other disabilities. This access is fundamental to attaining a number human rights, particularly those espoused in the ICCPR, ICESCR, CRC and CRPD. At its heart, access to accessible format works is fundamental to any right derived from or dependent on the right to information. The fundamental rights dependent on access to accessible format works and the relevant articles from these international human rights documents are as follows:
Right to Information and to Exercise Freedom of Opinion and Expression
At their core, many of the human rights that would require persons with visual impairments or other disabilities to have accessible format works flow from this right. As noted above, it was recognized by the Universal Declaration of Human Rights then expanded upon in later, binding international agreements. Without accessible format works, persons with disabilities may have difficulty in receiving or imparting information which are necessary in exercising and expressing his freedom of opinion.
ICCPR, Article 18
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.ICCPR, Article 19
1. Everyone shall have the right to hold opinions without interference.2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
CRC, Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.CRC, Article 13
1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.CRC, Article 14
1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.CRC, Article 17
States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.To this end, States Parties shall:
(a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29;
(b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources;
(c) Encourage the production and dissemination of children’s books;
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CRPD, Article 21
Freedom of expression and opinion, and access to informationStates Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in article 2 of the present Convention, including by:
(a) Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost;
(b) Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions;
(c) Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities;
(d) Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities;
(e) Recognizing and promoting the use of sign languages.
Right to Take Part in Society
The right to take part in society is a right that includes participation within one’s community and in a political and public life. Accessible format works are necessary to ensure that persons have the information necessary to inform one’s decisions and to promote self-reliance.
CRC, Article 23
1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.CRPD, Article 29
Participation in political and public lifeStates Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to:
(a) Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:
(i) Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;
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(b) Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:
(i) Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;
CRPD, Article 9
Accessibility1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:
(a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;
(b) Information, communications and other services, including electronic services and emergency services.
2. States Parties shall also take appropriate measures to:
(a) Develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public;
(b) Ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities;
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(f) Promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information;(g) Promote access for persons with disabilities to new information and communications technologies and systems, including the Internet;
(h) Promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost.
Right to Participate in Cultural Life
This recognized right inherently depends upon accessible format works. Literature, news and media are often fundamental aspects to culture and without accessible format works, persons with visual impairments or other disabilities may not be able to attain this right. Through accessible format works, these persons are not only able to enjoy culture, but also to contribute to it.
ICESCR, Article 15
1. The States Parties to the present Covenant recognize the right of everyone:(a) To take part in cultural life;
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CRC, Article 31
1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.
CRPD, Article 30
Participation in cultural life, recreation, leisure and sport1. States Parties recognize the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:
(a) Enjoy access to cultural materials in accessible formats;
(b) Enjoy access to television programmes, films, theatre and other cultural activities, in accessible formats;
(c) Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance.
2. States Parties shall take appropriate measures to enable persons with disabilities to have the opportunity to develop and utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of society.
3. States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials.
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Right to Enjoy the Benefits of Scientific Progress
Like the right to participate in cultural life, the right to enjoy the benefit of scientific progress is related to accessible format works. Often scientific progress is discussed or published in print format. Additionally, because of advances in technology, accessible works exist in numerous formats including braille, books on CD, DAISY, or the text-to-speech format on Kindle, among others and persons with disabilities should be able to enjoy these advancements.
ICESCR, Article 15
1. The States Parties to the present Covenant recognize the right of everyone:[. . .]
(b) To enjoy the benefits of scientific progress and its applications;
Right to Education
The reliance on written materials places those with visual impairments or other disabilities at a disadvantage in realizing this right. A serious “book famine” exists where it is estimated that no more than five percent of all copyrighted works are available in an accessible format and students may have difficulty attaining education without access to these works. Full participation in an educational life depends on equal access to the educational materials.
ICESCR, Article 13
1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
CRC, Article 28
1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
CRC, Article 29
1. States Parties agree that the education of the child shall be directed to:(a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential;
(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
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(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;CRPD, Article 24
Education1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and life long learning directed to:
(a) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;
(b) The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;
(c) Enabling persons with disabilities to participate effectively in a free society.
2. In realizing this right, States Parties shall ensure that:
(a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;
(b) Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;
(c) Reasonable accommodation of the individual’s requirements is provided;
(d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
(e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.
3. States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. To this end, States Parties shall take appropriate measures, including:
(a) Facilitating the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring;
(b) Facilitating the learning of sign language and the promotion of the linguistic identity of the deaf community;
(c) Ensuring that the education of persons, and in particular children, who are blind, deaf or deafblind, is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximize academic and social development.
4. In order to help ensure the realization of this right, States Parties shall take appropriate measures to employ teachers, including teachers with disabilities, who are qualified in sign language and/or Braille, and to train professionals and staff who work at all levels of education. Such training shall incorporate disability awareness and the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities.
5. States Parties shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities.
Right to Employment Opportunities
Many employment opportunities rely on being able to access written words, some of which may be copyrighted.
ICESCR, Article 6
1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.
ICESCR, Article 1
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.CRPD, Article 27
Work and employment1. States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:
(a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions;
(b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;
(c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;
(d) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;
(e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;
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