Copyright - Are people with sensory-disabilities getting a fair deal?
Denise Rosemary Nicholson
University of Witwatersrand
presented by Dick Kawooya
Copyright has become a barrier to accessing information, particularly in developing countries. Many developing countries have signed international intellectual property agreements, which set down minimum standards for copyright protection. For various socio-economic and political reasons, most, if not all of them, have not yet incorporated all these requirements into their national copyright laws. Nor have they taken advantage of the legal limitations and exceptions allowed in these international agreements. This means that developing countries do not have provisions for persons with visual, aural or perceptual disabilities in their national copyright laws. As a result, copyright laws restrict or block access to information for persons with sensory disabilities and often override their fair use rights. Many of these people are distance learners because of their disabilities. This presentation will show, from a South African perspective, that copyright laws do not address people with sensory-disabilities or distance learners. It will give some practical examples where people with sensory-disabilities are not getting a fair deal at all!
Copyright is a statutory monopoly, categorized by its international nature. It is increasingly becoming more restrictive, particularly in the digital environment. As rights-owners’ rights of protection are strengthened, so information-users’ rights are being weakened. For some users, such as people with sensory-disabilities, copyright has become a barrier to accessing knowledge.
“The right to access to information and ideas is vital for any society. If citizens are to participate and make informed choices, they must have access to political, social, scientific and economic information and cultural expressions. They need access to the widest range of ideas, information and images. Freedom, prosperity and the development of society depend on education, as well as on unrestricted access to knowledge, thought, culture and information. This right to intellectual freedom is essential to the creation and development of a democratic society….” [IFLA/FAIFE]
International copyright agreements such as the Berne Convention and the World Trade Organizations’ Trade Related Aspects of Intellectual Property Rights Agreement (“TRIPS”) make provision for limitations and exceptions to the exclusive rights of copyright-owners over their works. In this way, the public are given conditional access to this knowledge-base.
The rights of disabled persons are enshrined in the United Nations Universal Declaration on Human Rights and the United Nations Standard Rules on the Equalization of Opportunity for Disabled People. These rights ensure that an exception to copyright to secure the right to access knowledge for sensory-disabled people may be applied in national copyright legislation. For the purposes of this paper, “sensory-disabled” includes blindness, partial-sightedness, dyslexia, deafness and other perceptual disabilities. Since very little has been researched on the needs of deaf people with regard to copyright, international debates tend to focus on the needs of the visually-impaired.
All exceptions to copyright are subject to the “Berne three-step-test”, which is a set of constraints on the limitations and exceptions to exclusive rights under national copyright laws. It was first applied to the exclusive right of reproduction by Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works in 1967. Since then, it has been transplanted and extended into the TRIPS Agreement (Art. 13), the WIPO Copyright Treaty, the EU Copyright Directive and the WIPO Performances and Phonograms Treaty.
The first step applies to certain special cases limited to specified groups of users and covers certain kinds of works and uses. The second step requires that uses of copyright works may not have the potential to conflict with a normal exploitation of the work. The question of unreasonable prejudice needs to be considered in the third step, in order to determine if the exception should be subject to a requirement to pay equitable remuneration, or qualified as a free use.
COPYRIGHT LAWS ADDRESSING THE SENSORY-DISABLED
Countries may interpret and implement exceptions into their national laws within the context of their domestic situation. Several countries, mostly developed countries, have already adopted specific provisions that address exceptions for visually-impaired persons, as follows:-
- Australia, Part V Division 3 of the Copyright Act of 1968;
- Canada, Section 32 of the Copyright Act of 1997;
- United States of America, Section 121 (the Chafee Amendment of 1996) of the Copyright law;
- European Union, Article 5(3)(b) of the Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society of 2001;
- United Kingdom, the Copyright (Visually Impaired Persons) Act of 2002
- Denmark, Section 17 of the Danish Copyright Act of 2003;
- Japan, Article 33bis of the Copyright Law of 2003;
- Republic of Korea, Article 30 of the Copyright Act of 1995;
- Latin America region:-
- Brazil, Article 46 of Law 9.610 of 1998
- Nicaragua, Article 34 of Copyright Law of 1999
- Paraguay, Article 39 of Law 1328/98 of 1998
- El Salvador, Article 44 of the Law on Promotion and Protection of Intellectual Property of 1993;
- Panama, Article 17 of Law 15 of 1994;
- Dominican Republic, Article 44 of Law 65 of 2000
The above provisions all pass the ‘three-step-test’ and are based on the same fundamental principle. However, the scope and application of the exception differs from one country to another. All these countries have interpreted exceptions for sensory-disabled persons under the category of “special cases”. Two questions must be posed – Is providing equitable access to knowledge for persons who read or access material differently a ‘special case’? Are the sensory-disabled getting a fair deal with regard to copyright?
DEVELOPING COUNTRIES’ PERSPECTIVE
Although the above laws attempt to address the needs of the sensory-disabled, none of them are suitable models for developing countries. In any copyright law review in developing countries, these examples would need to be studied carefully within the socio-economic framework of each country, and would need to be suitably adapted to each country’s domestic situation.
Developing countries would benefit from legal flexibilities allowed in international copyright agreements. Few, however, have adopted them, as it involves enormous costs and additional personnel to implement such changes into their national laws. Although some countries have constitutions or laws specifically addressing the rights and/or needs of persons with disabilities in general, none of them have appropriate provisions for the sensory-disabled in their copyright laws.
Perspective from South Africa
In relation to other African countries, my country, South Africa, has the most limitations and exceptions for education and library purposes in its Copyright legislation. Yet, it does not address the needs of the people with sensory-disabilities.
Section 12(1) of the South African Copyright Act No. 98 of 1978 (as amended) allows ‘fair dealing’, for “reproduction for the purposes of research or private study or for personal or private use, as well as for criticism or review, or for inclusion in judicial proceedings. Quotations are permitted as long as they are within fair practice and are properly acknowledged. Except for enlargement of printed text by a partially-sighted reader, almost every conversion from print to an alternative form is a transgression of copyright law. Yet, if that is the only way that someone can read a text or access information, there is a conflict between moral and legal rights. There is a very strong case to be made that the converting of materials for people with sensory-disabilities should be exempt from copyright restrictions. They do not form a homogenous group in view of their various disabilities, so their diverse needs should be adequately addressed in the copyright law.
Section 12(4) of the Act, permits copying, without permission, of a literary or musical work, to the extent justified by the purpose, ‘by way of illustration’, in any publication, broadcast or sound or visual record for teaching. This applies to classroom use, as well as distance education, in-house staff training and limited applications for sensory-disabled persons, e.g. reading a small extract of a work onto an audio-tape to illustrate or highlight a specific aspect of a lecture.
Section 13 of the Copyright Regulations has specific exceptions for libraries and educational purposes, which include limited multiple copying for classroom use. People who are deaf or partially-sighted can benefit from photocopied handouts, in normal or enlarged print. However, these exceptions do not extend to persons requiring conversions from print material to alternative formats, or conversions from audiotapes to text, or conversions from text to more visual formats, for deaf persons. They also do not extend to distance learners or informal literacy learners, many of whom have sensory-disabilities.
The Dramatic, Artistic and Literary Rights Organisation (DALRO), in South Africa, is one of eight reprographic rights organisations in Africa. It is the only one that collects and distributes copyright fees to rights-owners on a regular basis. DALRO offers transactional copyright licences to the educational sector and corporate organizations. It does not clear copyright for any adaptations, translations or conversions to alternative formats, except for Braille conversions, which are covered in its Blanket Licence, which is only available for tertiary institutions.
In South Africa, reproduction of published works differs from institution to institution. Some faculties do not need to copy beyond the provisions of ‘fair dealing’ or the exceptions, as they produce their own notes, have book and journal club facilities, or refer students to original texts and e-databases. Some publications, in fact, allow multiple photocopying for educational purposes. These all assist sighted-students in obtaining study material. However, in all these instances, there are no provisions to enable a sensory-disabled person, to obtain access to the same material, at the same time and at the same cost as their fellow-students. Copyright owners have the exclusive right to allow any conversions, adaptations or translations of their works. So even where copyright does not apply, sensory-disabled people are disadvantaged, as they still need copyright clearance to convert the material into more accessible formats. This is clearly a contravention of Section 9 of the South African Constitution, which states that “everyone is equal before the law and has the right to equal protection and benefit of the law”, and that the state may not unfairly discriminate directly or indirectly against anyone on various grounds, including disability.
COPYRIGHT BARRIERS FOR THE SENSORY-DISABLED
The following practical examples indicate how copyright restrictions or lack of copyright exceptions in national laws violate the rights of sensory-disabled persons. Although these are mainly South African examples, they are experienced by sensory-disabled persons around the world.
- All students are obliged to purchase prescribed textbooks for their courses. Sighted-students are able to commence studying immediately since they have access to their reading material. The sensory-disabled person first has to apply to each rights-owner for copyright permission to convert their textbooks into an alternative format, whether it is Braille, audio-tape, CD, or for voice-recognition computerized systems.
Most publishers do not provide alternative formats, nor do they make the source files available to users. This means that educational institutions that have specialized units have to scan whole prescribed books and edit them for students, after obtaining copyright permission. Alternatively, students have to find a facility that can do this for them. The whole process is very time-consuming and costly. In addition, the quality of the scanned copy is often very poor, which affects the final converted product. Ultimately, access is affected, which impacts negatively on the student’s progress.
Some publishers provide the works on CDs, but pre-payment is required before the students can receive them. Having had to purchase the hard-copy version, this can be problematic for students receiving financial aid, as their study grants do not always cover this additional expenditure. Alternatively, their study grant money is not always received in time to pay the publishers upfront.
Whilst sighted-students can read and annotate their printed textbooks, blind persons cannot even access the text, until they have gone through the tedious process of obtaining copyright clearance and then converting it into an accessible format.
As students progress in their studies, so the nature of material being studied becomes more specialized. The likelihood of textbooks being accessible therefore decreases, making it more difficult for persons with sensory-disabilities to obtain the information. The result is that students drop or change courses and even career paths, based on information availability in their field.
Even if a blind student wanted to purchase a textbook in an accessible format, this is impossible. Booksellers do not sell textbooks or other reading material in alternative formats. Some sell large-print books, but they are mainly fiction. Whether it is study material, leisure books, newspapers or magazines that a blind person wants to access, he/she has to go through the process of first purchasing the publication, or loaning it, and then applying for copyright clearance to convert it into an accessible format, before being able to enjoy the content. This also means that a lot of the material he/she eventually gets to read is outdated.
Even when material is converted into digital formats, e-text is not always the answer to every accessibility need for sensory-disabled persons. So far, there is limited support for anything other than text-based subjects. PDF is a compiled format that can accurately represent visual formatting, but can pose serious accessibility challenges. The DAISY consortium, a group devoted to creating standards for digital talking books, has done notable accessibility work with XML to resolve many of these problems. Speech to text software is helpful but has its limitations. Audio presentation of science and mathematics, for example, is beyond the capability of most assistive technology. Even the latest versions of Braille software are not capable of rendering complex textbooks. Trained transcribers are essential to ensure the transcribed book is an accurate counterpart to the printed edition.
- When preparing for an assignment, students usually visit the library to find material. They collect various works and then browse through them to find relevant information relating to the topic. In terms of ‘fair dealing’, they are permitted to make single copies of various extracts, articles, case studies, images, etc. Once they have collated all the relevant material, they can commence work on the assignment. This is a typical routine that most sighted-students would follow. However, the scenario is very different and far more complicated for a blind student.
The blind student would not have a choice of library or resource centre to find relevant information. He would need to visit a library that accommodates sensory-disabled persons. This is particularly difficult in South Africa and other developing countries, where few libraries are designed to accommodate persons with sensory-disabilities. This means that the student would need to depend largely on library staff to assist him in finding the relevant information for his project. Apart from special libraries for the blind, most libraries do not have specialized equipment to convert works into alternative formats.
In view of the above, the blind student would therefore need to borrow the relevant works, and then obtain copyright permission to convert the information into an alternative format. Depending on whether the rights-owners are in the country or abroad, copyright clearance could take several months. He would therefore need to obtain an extended loan period, alternatively, be allowed to renew the works several times. Only once permission is granted, can he proceed to have the information converted into a more accessible format, either at his institution or at a specialized unit. If rights-owners refuse permission or fail to respond, he is prevented from accessing the material altogether. If he proceeds without prior permission, he would be guilty of copyright infringement.
In this example, it is obvious that the blind person’s studies would be severely prejudiced. Having information in a useable format can be the difference between success and failure. By the time the work becomes legally accessible to him, the assignment date has very likely passed and his fellow sighted-students are already working on their next assignment. Despite the law allowing ‘fair dealing’, he cannot exercise those rights at all. Apart from human rights, his right to access information in terms of the copyright law is being violated.
Faculties are obliged to clear copyright for photocopied material in course-packs for students, including blind students, despite the latter not being able to access the photocopied version. Thereafter, each blind student has to obtain further permission to convert the course-pack into an alternative format. In some instances, they have to pay for the course-pack, the copyright fee and the conversion.
- Sensory-disabled persons purchase and enjoy commercial audio recordings. While productions of audio books are increasing, the availability of audio books falls well behind that of traditionally published titles. These users, therefore, would not obtain the current version at the same time as sighted-persons.
- Making videos or more visible material available to deaf students is costly and time-consuming. As the material being used mainly requires adaptations and translations, copyright has to be cleared directly through rights-owners, not rights organizations.
- Not all websites are easily accessible by the sensory-disabled. Apart from copyright and licence restrictions, there are also problems with navigation, font sizes, colours, graphics, icons, tables, moving or scrolling text, pop-ups, flashing data and text contrasts which affect accessibility.
DIGITAL RIGHTS MANAGEMENT SYSTEMS
Digital technology has the potential to revolutionize the lives of people with sensory-disabilities. For example, text-to-speech synthesizers allow words on the screen to be read out aloud and images to be described verbally. This enables the blind person to hear, rather than read, the text. There is also software that enables a computer to react to voice commands instead of commands via a keyboard or mouse. There are screen readers that translate electronic text into Braille.
Unfortunately, digital rights management systems (DRMs) restrict or block the above activities. Adobe's e-books, for instance, have the capacity to be read aloud by a computer, but rights-owners use technological protection measures to turn off this capability. These measures prevent interoperability with text-to-speech software, effectively blocking access for blind persons, even when they have purchased the original work. They override copyright exceptions and create technological barriers where no legal barriers exist. International IP agreements and national laws in some countries prohibit users from circumventing or bypassing these protection measures for legitimate access purposes. South Africa’s Copyright law does not address anti-circumvention measures, but they are provided for in the Electronic Communications and Transactions Act No. 25 of 2002. The ability of sensory-disabled persons to benefit from digital media is therefore being undermined by DRMs
Sensory-disabled persons should not have to seek copyright permission to transform material into accessible formats or media, unless the rights-holder is providing the appropriate accessible version at the same time and under the same terms as to sighted-persons.
Copyright laws should enshrine the rights of sensory-disabled persons and not merely create vehicles for permission. They should include appropriate limitations and exceptions to facilitate, not restrict, access to knowledge. The balance between the just demands of rights-owners and the rights of information-users must be restored. Only then will persons with sensory-disabilities get a fair deal.
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