Australia co-sponsored a Proposal on an international instrument on limitations and exceptions for persons with print disabilities at the 22nd session of the World Intellectual Property Organisation Standing Committee on Copyright and Related Rights (SCCR) in June 2011. Commissioner Graeme Innes attended this meeting at the request of the World Blind Union.
Further discussion on limitations and exceptions for persons with print disabilities is on the draft agenda for the 23rd session of the SCCR from 21 November 2011 to 2 December 2011 and the Australian Government is consulting stakeholders to inform the position Australia will take at this meeting.
Commissioner Innes believes the proposal has the potential to provide great benefit to persons with a print disability around the world and has strongly encouraged Australia to support the development of an internationally binding instrument at the next SCCR meeting.
Comments provided by Commissoner Innes to the Australian Government are reporduced below:
WIPO proposal on access to copyright works for persons with a print disability
Thank you for the opportunity to provide comments on the working document Australia co-sponsored at the 22nd session of the World Intellectual Property Organisation Standing Committee on Copyright and Related Rights (SCCR) in June 2011 – a Proposal on an international instrument on limitations and exceptions for persons with print disabilities (the proposal). I commend the Australian Government’s commitment to improving access to copyright works for persons with a print disability.
I believe the proposal has the potential to provide great benefit to persons with a print disability around the world and I strongly encourage Australia to support an internationally binding instrument at the next session of the SCCR in November 2011. Provided below are my responses to the Department’s consultation questions.
What are your general views on the proposal?
I believe the proposal has the following three advantages:
- First, the proposal would address deficiencies in international copyright law relating to exceptions for the benefit of persons with a print disability;
- Second, the proposal would assist countries to meet its obligations under the Convention on the Rights of Persons with Disabilities (CRPD); and
- Third, the proposal would advance the aims of the Disability Discrimination Act 1992 (Cth) (DDA).
Deficiencies in international copyright law
(a) Mandating exceptions in domestic law
The proposal seeks to address two main issues: (1) mandating exceptions in domestic law to allow for the making of copyright works in accessible formats without the authorisation of a copyright owner, and (2) the cross-border exchange of accessible works between countries.
Copyright treaties, such as the Berne Convention for the Protection of Literacy and Artistic Works[i] (the Berne Convention) permit member States to provide for exceptions and limitations in domestic law. However, these treaties do not specifically mandate exceptions or provide for the international exchange of accessible works. Instead, as Judith Sullivan’s Study on Copyright Limitations and Exceptions for the Visually Impaired[ii] (the Sullivan study) found, international copyright law provides a framework that is complex and confusing.
As a result, not all member States to the World Intellectual Property Organisation (WIPO) have exceptions for the benefit of persons with a print disability in their domestic law. In addition, there may be more differences between exceptions than is needed among countries where domestic copyright exceptions exist[iii]. For example, developed countries such as Australia, Canada, and New Zealand provide copyright exceptions in domestic law but according to the Sullivan study fewer than half of the WIPO member States have such exceptions. Current copyright treaties do permit countries to enact domestic copyright exceptions for the benefit of people with a disability but contracting States to these treaties are not doing so.
The proposal would make it clear that countries are obliged under international law to enact exceptions in domestic law permitting the making of accessible copyright works for the benefit of persons with a print disability. If the current confusing and complex international copyright framework is preventing some countries from providing exceptions in their domestic law then this proposal would go some way to address this.
(b) Cross border exchange of accessible works
The international copyright system is territorial in nature despite the existence of treaties that govern the framework for national copyright laws. This means that each country is generally only able to make laws regulating copyright works within that country. When there is copyright activity across jurisdictions it is unclear what parts of the exchange are lawful and which country’s laws would apply. In these situations, the application of the laws of all the countries involved would need to be considered. As the Analytical Document on Limitations and Exceptions[iv] prepared by the WIPO Secretariat notes, guidance by private international law experts on this issue is complex and there is likely to be considerable divergence among legal experts on the correct interpretation of copyright law.
One benefit of the proposal is that it would clarify the international law on cross-border exchange of accessible works. It is generally recognised that copyright works in accessible formats are produced in developed countries while people with a visual impairment primarily reside in countries of low to moderate incomes. As this is the case, this proposal would provide persons with a print disability in developing countries with access to copyright works in alternative formats they currently cannot access.
Obligations under the CRPD
The Preamble to the proposal recalls the principles of non-discrimination, equal opportunity, and access proclaimed in the CRPD. Australia ratified the CRPD on 17 July 2008 and by doing this Australia committed to promoting, protecting, and ensuring the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities[v]. The general principles of the CRPD include:
- non-discrimination (Article 3(b));
- full and effective participation and inclusion in society (Article 3(c));
- equality of opportunity (Article 3(e)); and
- accessibility (Article 3(f)).
Under Article 4 of the CRPD countries have general obligations to:
- adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention (Article 4(1)(a));
- take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities (Article 4(1)(b));
- take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes (Article 4(1)(c));
- refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention (Article 4(1)(d)); and
- take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise (Article 4(1)(e)).
More specifically, particular provisions of the CRPD oblige countries to:
- take appropriate measures to ensure persons with disabilities have access, on an equal with basis with others, to information and communications (Article 9);
- ensure that persons with disabilities can exercise the right to seek, receive and impart information and ideas on an equal basis with others through all forms of communication of their choice (Article 21);
- take steps to ensure that people with disability enjoy access to cultural materials in accessible formats (Article 30); and
- ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access to cultural materials by persons with disabilities (Article 30(3)).
The CRPD also recognises in Article 31 the importance of international cooperation and its promotion in support of national efforts for the realisation of the purpose and objectives of the Convention.
While it has long been recognised that restrictions and limitations upon authors and related rights may be justified in particular cases, primarily on public interest grounds[vi], the CRPD makes it very clear that member States must ensure laws protecting intellectual property rights do not discriminate against people with a disability. International copyright law provided countries with the discretion to consider the needs of people with a disability in developing its domestic copyright framework prior to the CRPD. However, the CRPD which entered into force internationally on 3 May 2008, now obliges contracting States to introduce measures that promote the human rights of persons with disabilities without discrimination. These measures include eliminating laws and practices that discriminate against persons with disabilities and considering people with a disability when adopting new policies and programs. Other measures include making services, goods, and facilities accessible to persons with disabilities.
The Committee on the Rights of Persons with Disabilities (the Committee) also has the power under the Optional Protocol to the CRPD to receive complaints from individuals and groups of individuals who believe that their country has breached the Convention. Australia acceded to the Optional Protocol on 21 August 2009 and it came into force for Australia on 20 September 2009. This means that individuals and groups of individuals in Australia who believe Australia has breached the CRPD could make a complaint to the Committee.
Australia was one of the first Western nations to ratify the CRPD. In doing this Australia committed to promoting the full and equal participation of people with a disability in social, economic, and cultural life. With only an estimated five per cent of published books available in accessible formats in developed countries and an even lower percentage in developing countries[vii] persons with a print disability are currently being denied access to information necessary for their full and equal participation. The proposal has the potential to increase the availability of accessible copyright works all around the world which in turn would promote equality of opportunity for persons with a print disability everywhere.
Disability Discrimination Act 1992
In Australia the DDA aims to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of work, education, the provision of goods and services, existing laws, and the administration of Commonwealth laws and programs. Under the Australian Human Rights Commission Act 1986 (Cth), the Australian Human Rights Commission can investigate complaints made under the DDA or complaints made against the Commonwealth and its agencies about alleged breaches of human rights including breaches of rights recognised under the CRPD.
I believe that the proposal would be consistent with and promote the objective of the DDA to eliminate discrimination against persons with a disability as far as possible. The Copyright Act 1968 (Cth) (the Copyright Act) currently provides a system of exceptions and statutory licences for the benefit of persons with a print disability. However, I am of the view that any changes to the Copyright Act as a consequence of the proposal (such as to provide for the cross-border exchange of accessible works) would strengthen the current exception framework.
Would it benefit Australian people with a print disability?
I believe the proposal would benefit Australian people with a print disability.
My view is that the proposal has the potential to increase the number of accessible copyright works available in Australia even though the Copyright Act already provides for a system of exceptions and statutory licences permitting certain access to copyright works. For example, if other English speaking countries like the United States, Canada or New Zealand adopt the proposal, Australians with a print disability would have access to accessible works in those countries through the cross-border provisions of the proposal. As a result, this would increase the number of available accessible copyright works in Australia.
Further, as the proposal establishes ‘authorised entities’ to distribute copyright works in accessible formats, it is likely that organisations would not duplicate copyright works in alternative formats which would probably save time and costs. This would provide organisations with greater financial capacity to make accessible copyright works and result in increased numbers of available accessible works in Australia.
Are there sufficient safeguards for rights holders?
I am of the view that the rights of copyright owners should not be more important than the rights of people with a disability.
The proposal recognises the importance and flexibility of the three step test for limitations and exceptions established under Article 9(2) of the Berne Convention and other international instruments. The proposal also establishes safeguards for rights holders by providing:
- boundaries on who can receive and distribute accessible works;
- conditions on when authorised entities can supply accessible works; and
- certainty that contracting states cannot provide exceptions in national law if it would conflict with a normal exploitation of the work and unreasonably prejudice the legitimate interests of the rights holders.
What are your views on the status of the proposed instrument (binding/non-binding)? What would be the practical effect of either outcome? Do you favour a two-step process (non-binding joint recommendation leading to binding treaty)?
I believe that an internationally binding instrument would ensure sustainable and cost effective access to copyright works in accessible formats.
While a non-binding instrument would embody political and moral commitments by their parties it could not require governments to undertake specific action under domestic law[viii]. Therefore, as the proposal seeks to mandate exceptions in domestic laws it would not make sense to have an instrument that would not compel governments to take action.
It might be argued that another internationally binding instrument is not necessary because copyright treaties already permit member States to provide exceptions in domestic law. However, as outlined in answer to the first question above, there are current deficiencies in international copyright law which may be discouraging countries from making exceptions for the benefit of persons with a print disability. I believe that an internationally binding instrument would provide the necessary international legal certainty required to properly address the issues identified in the proposal. More specifically, I support the development of a multilateral treaty as this would allow for greater international support of the instrument.
I do not consider there to be significant advantages in undertaking a two-step process (non-binding joint recommendation leading to a binding treaty). If a binding treaty is the preferred end result then I believe it would be a better use of time and resources to proceed directly with the treaty making process. In addition, there is a risk that countries would lose their commitment to creating an internationally binding instrument once a non-binding instrument is finalised if the two-step approach is adopted.
What Australian organisations could become ‘authorised entities’?
Organisations assisting persons with a print disability in Australia could become ‘authorised entities’ under the proposal as such organisations would have a good understanding of the needs of their constituents. For example, Vision Australia’s Information Library Service (VAILS)[ix] provides information and reading in accessible formats for people with a print disability across Australia. VAILS has a wide range of print alternative books, magazines and newspapers available to Library members in audio, Braille and for download. Organisations like Vision Australia which already provides accessible copyright works could be an authorised entity under the proposal.
Should Australia support the proposal?
Australia should support the proposal for the following reasons:
- the proposal would clarify in international law the obligation of countries to provide exceptions in domestic law for the specific benefit of persons with a print disability;
- the proposal would permit the cross-border exchange of accessible format copies and increase the availability of accessible copyrights works in Australia;
- the proposal would assist Australia to meet its obligations under the CRPD and promote the objectives of the DDA;
- developed countries as the main producers of accessible works can share its accessible works with developing countries;
- countries could use their resources to reproduce copyright works in accessible formats more effectively; and
- Australia can demonstrate its willingness to assist developing nations and show leadership to the international community on this issue.
Do you have any other comments on this proposal?
I suggest that it is not necessary to finalise and reach agreement on the text of the instrument before determining its status. Instead, determining the status of the instrument first may actually inform the text of the instrument as there may be different drafting rules depending on whether an instrument has treaty or less than treaty status[x].
I acknowledge that copyright is not the only barrier to the availability of accessible works and other solutions may also improve the availability of accessible copyright works. However, I am of the view that if the current proposal provides some benefit to persons with a print disability then it is worth pursuing.
Thank you for the opportunity to provide comments on the proposal. I would be very happy to discuss any of the above responses or provide further advice to you on this issue.
Graeme Innes AM, Disability Discrimination Commissioner
[i] See also, the WIPO Copyright Treaty, 1996. At http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html (viewed 25 October 2011) and International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961. At http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html (viewed 25 October 2011).
[ii] J Sullivan, Study on Copyright Limitations and Exceptions for the Visually Impaired, Paper prepared for the World Intellectual Property Organisation Standing Committee on Copyright and Related Rights: Fifteenth Session. At http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=75696 (viewed 25 October 2011).
[iii] J Sullivan, Study on Copyright Limitations and Exceptions for the Visually Impaired, Paper prepared for the World Intellectual Property Organisation Standing Committee on Copyright and Related Rights: Fifteenth Session, p 134. At http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=75696 (viewed 25 October 2011).
[iv] World Intellectual Property Organisation Secretariat, Analytical Document on Limitations and Exceptions, Paper prepared for for the World Intellectual Property Organisation Standing Committee on Copyright and Related Rights: Nineteenth Session 19th. At www.wipo.int/edocs/mdocs/copyright/en/sccr_19/sccr_19_3.doc (viewed 25 October 2011).
[v] Convention on the Rights of Persons with Disabilities, 2006, art 1. At http://www.un.org/disabilities/default.asp?navid=14&pid=150 (viewed 26 October 2011).
[vi] S Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment, Paper prepared for for the World Intellectual Property Organisation Standing Committee on Copyright and Related Rights: Ninth Session, p 3. At www.wipo.int/edocs/mdocs/copyright/en/sccr_19/sccr_19_3.doc (viewed 26 October 2011)
[vii] For example, it is estimated that only 0.5 % of published works are converted into accessible formats in India. See WIPO Director General, ‘WIPO Director General Pledges Support for India’s Visually Impaired Community’ (Media Release, 11 November 2009). At
http://www.wipo.int/pressroom/en/articles/2009/article_0048.html (viewed 25 October 2011)
[viii] Department of Foreign Affairs and Trade, Treaties in the Global Environment, http://www.dfat.gov.au/treaties/workshops/treaties_global/scully2.html (viewed 27 October 2011)
[ix] Vision Australia, Vision Australia’s Library Service, http://www.visionaustralia.org/info.aspx?page=1987 (viewed 27 October 2011)
[x] Department of Foreign Affairs and Trade, Treaties in the Global Environment, http://www.dfat.gov.au/treaties/workshops/treaties_global/scully2.html (viewed 27 October 2011) WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment