Fostering Accessible Technology through Regulation

Delia Ferri, G. Anthony Giannoumis

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138216532
• eBook ISBN: 9781315442068
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

Technology has attracted an increasing level of attention within studies of disability and disability rights. Many researchers and advocates have maintained skepticism towards technology out of the fear that technology becomes another way to 'fix' impairments. These skeptical views, however, contrast with a more positive approach towards the role that technology can play in eliminating barriers to social participation. Legal scholarship has started to focus on accessibility and accessible technology and in conjunction with the recently adopted United Nations Convention on the Rights of Persons with Disabilities has put a great emphasis on accessibility, highlighting the role that accessible technology plays in the promotion and protection of the rights of people with disabilities. Against this background, this book gathers together different contributions that focus on enhancing the production, marketing and use of accessible technology. Building upon previous academic studies and in light of the UNCRPD, accessible technology is considered a tool to increase autonomy and participation. Overall, this book attempts to show, through a multifaceted and inter-disciplinary analysis, that different regulatory approaches might enhance accessible technology and its availability. This title was previously published as a special issue of the International Review of Law, Computers & Technology.

Disability, right to culture and copyright: which regulatory option?

Caterina Sganga

Department of Legal Studies, Central European University (CEU), Budapest, Hungary

Access to knowledge and participation in cultural life for persons with disabilities has always constituted a tough challenge. Recent studies show that only 5% of published works are available in accessible format, and the number plummets to 1% in developing countries. Coupled with the high costs of production and distribution, and the full reliance on public funds and intervention of public or non-profit organizations, copyright has traditionally represented an additional obstacle on the path for a broader availability of accessible works. Recently, the situation has worsened with the tilting in the balance between rights and exceptions caused by the legislative response to digital threats, when the unprecedented opportunities offered by new technologies to foster accessibility have been largely trumped by copyright law. Still, the last decades have witnessed the beginning of a paradigm shift, originating from the human rights arena, and moving towards a new definition of the interplay between authors’ rights and the right to take part in cultural life, both at a general level and with particular regards to persons with disabilities. This article offers a diachronic overview of the path that, from the rediscovery of Article 15 of the International Covenant on Economic, Social and Cultural Rights through its General Comments to Article 30 of the United Nations Convention on the Rights of Persons with Disabilities, has led to the adoption of the Marrakesh Treaty. It then analyses, with a focus on the European Union and its Member States, the national and regional responses to the new human rights obligations, looking at the relations between legislative exceptions and model or collective license agreements. The assessment of the strengths and weaknesses of the two main regulatory options lays the groundwork for proposals of further areas of intervention, necessary to fully comply with the international human rights obligations and to achieve the fullest access to and participation in culture possible for persons with disabilities, by using the tools offered by international and national copyright law.

1. Introduction

When its focus moved from censorship and press control to the protection of authors, copyright law witnessed a radical paradigm shift in its rationale. Despite their different philosophical inspirations – utilitarianism in the Anglo-Saxon copyright, personalism in the French droit d’auteur – the two main regulatory models developed in England and France in the eighteenth century shared the new common goal of providing incentives for the creation of new knowledge, and effective tools for its dissemination. Since the very beginning, these goals were pursued by granting authors monopolistic control over any access and exploitation of their works. Furthermore, to limit the negative effects of a potentially unrestricted monopoly, copyright laws circumscribed its duration and scope, and provided a set of exceptions that allowed, in specific circumstances, unauthorized and uncompensated uses of the work.

Such ‘copyright balance’ proved to be effective for a long period of time. Legislators and courts answered the challenges created by new works, new uses, and new conflicting interests, with a constant adaptation of existing rules, and the introduction of new ad hoc exceptions. However, the harmony was broken when copyright went digital and its distribution and consumption dematerialized and moved to the Internet. The ease of reproduction and dissemination of high-quality, counterfeited copies posed new piracy threats and severely impacted the market of protected works, so much so that authors and producers launched unparalleled campaigns to obtain a resolute legislative intervention, directed at reinforcing a protection that was deemed nullified by new technologies. The pressure was so strong and effective that the World Intellectual Property Organization (WIPO), confronted with the impossibility to modify the Berne Convention due to the lack of support from developing countries, enacted two special treaties, the WIPO Copyright Treaty (WCT) and the WIPO Performers and Producers of Phonograms Treaty (WPPT), jointly known as the WIPO Internet Treaties in 1996; most of the intellectual property (IP)-producing countries or regions, among them the European Union (EU), followed suit, with laws specifically directed at regulating digital copyright.

Inspired by the WCT and WPPT – both of them signed and ratified by the EU, and thus imposing international obligations on the Union – Directive 2001/29/EC on Copyright in the Information Society (InfoSoc Directive) answered these specific digital challenges by adapting old rights, such as reproduction and distribution, to the new technological environment, and introducing new ones, such as the right of communication to the public and the right of making the work available.¹ In parallel, the Directive set up legal remedies against the circumvention of technological measures of protection (TMPs) of digital works, implemented by producers to control the access and use of their products. Unfortunately, while the attempt to dispel digital threats was strong and evident, no similar effort has been put in trying to leverage the unprecedented opportunities digital technologies and the Internet have created for access to – and participation in – cultural life, such as the drastic abatement of reproduction and distribution costs, a much more pervasive and faster diffusion of materials, and the increased availability of more effective tools to remove barriers against the creation and dissemination of knowledge. The double face of Internet and digitalization should have reasonably suggested fine-tuning once again the copyright balance, in order to prevent new infringement without stifling access to culture and participation, and rather exploiting at best the opportunities offered by the technological progress. Yet, copyright history has moved towards a radically different path.

The WIPO Internet Treaties devote very little attention to digital exceptions and limitations, providing only a non-mandatory list of examples (Article 10 WCT, Article 16 WPPT). Following a similar approach, Article 5 of the InfoSoc Directive enlists several exceptions among which Member States are free to pick and choose – a decision that once again appears particularly striking when compared with the strong harmonization effort on the side of exclusive rights, and that has caused the creation of a fragmented patchwork of differing national solutions. The same level of uncertainty surrounds the case of a TMP preventing the exercise of an exception, since the Directive is silent on the treatment of an act of TMP circumvention directed to an otherwise legitimate use of the work. The alteration of the copyright balance can also be noticed in countries equipped with flexible, open-ended judicial clauses to establish the existence of fair uses, such as the United States, where courts have progressively switched towards a greater consideration of market arguments in their balancing exercise – to the detriment of the purpose of the use and its relevance for the pursuance of other interests. Similar processes and effects can be traced in those judicial decisions that use the three-step-test to limit or exclude the application of existing exceptions if their exercise in the case at stake appears to create an unreasonable prejudice to the legitimate interest of the rights-holder (Griffiths 2009; Geiger et al. 2010; Kur 2008; Gervais 2008). Backed by such a supportive and favorable legal environment, producers are now distributing copyright materials under license agreements that expand their rights and circumscribe the scope of exceptions or ban their exercise, while TMPs enforce contractual clauses and guarantee the most pervasive control that has ever been experienced in the history of the access and use of protected works.

In an attempt to eradicate piracy to the maximum extent possible, international and national lawmaking efforts have substantially tilted the balance that has always weighted control versus access in copyright law. As a response to the phenomenon and its consequences, the last two decades have seen a growing number of scholars and activists turning their attention to the negative impact of copyright law on – among others – freedom of expression, right to receive and impart information, right to education, right to take part in cultural life, and freedom of research. While the debate in the international fora looks at the clashes between copyright and international human rights, and on the potential implication of state human rights obligations on the international and national copyright lawmaking, at a national level – and the same can be said for the EU – the focus moves to the interplay between copyright and fundamental rights enshrined in constitutional charters. On the side of the human right to culture, the Access to Knowledge (A2K) movements have advocated for legislative reforms both for developing and developed countries where, in the first case, flexibility in copyright law is considered necessary to help new technologies provide cheaper and easier access to cultural goods while, in the second case, it is deemed fundamental to foster innovation and allow cumulative knowledge generation (Abdel-Latif 2010; Kapczynski 2008).

For people with disabilities, access to knowledge and participation in cultural life has always represented a tough challenge. As recently as 2013, several studies reported a strikingly low number of worldwide books available in Braille (5%), a number depicting an unsustainable book famine, the size of which become even broader (1%) in developing countries (World Blind Union 2013; Diamond 2013; Harpur and Suzor 2013, 745; WIPO SCCR 2009a; Rekas 2013). The root causes have been identified in the high cost of generating accessible copies, the lack of public funding to support accessibility projects, and the missing incentive for private parties to engage in a market with high entry barriers and a limited number of potential customers. In this sense, new technologies have opened extraordinary opportunities to overcome these problems and foster access to cultural materials for users with disabilities: digital copies in accessible formats are cheaper and easier to produce and distribute; cross-border exchanges of accessible copies have never been so fast and convenient; new software, such as text-to-speech systems, expand the boundaries of accessibility far beyond the constraint of the Braille language; mass-digitalization has the potential to make available worldwide books and museum collections; digital broadcasting helps render subtitling cheaper and smoother; and new devices make it possible for the visually impaired to enjoy cultural heritage, along with monuments and artistic pieces, with little or no disability barriers. One would expect disability to be one of those clear-cut, neat cases where the low risks of abuse of exceptions, coupled with the particular users’ condition of users, could justify a very lenient approach to the copyright balance and a more positive attitude towards the possibilities offered by digital technologies. Yet, this has never been fully the case.

Albeit already present in a significant number of countries before the digital revolution, disability exceptions to copyright have not been part of the international and national debates on information society and copyright reform until recently. Moreover, the validity of a mere exception-oriented approach to the book famine problem has never been really questioned until the last negotiating phase of the WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled (WIPO Marrakesh Treaty 2013), and the advent of the new social model of disability introduced for national and regional disability policies by the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). This long delay has dramatically slowed the readiness of copyright rules to take advantage of the opportunities offered by the digital revolution to people with disabilities and their cultural engagement. Not only has such procrastination veiled with uncertainty the validity of traditional disability exceptions in the digital environment – with particular regards to the increasing constraints regarding the access to and use of protected works enforced by TMPs – it has also failed to remove the obstacles posed by the new digital copyright legislation to the exploitation of new technologies by institutional users and intermediaries, such as libraries, museums, educational institutions and non-profit organizations, whose role remains fundamental in improving accessibility and achieving a broader dissemination of accessible cultural products.

However, the time for a paradigm shift has come. As common in the field of IP law, the push forward originated from the human rights arena. Here laid the basis for the first analysis of the clashes between access to knowledge for people with disabilities and copyright, and from here comes today the call for a fuller inclusion of copyright and access to knowledge among the subject matters of disability policies, with an approach that moves beyond the mere provision of ad hoc exceptions and aims at building an international regulatory framework able to facilitate the adoption of more structured affirmative actions.

This paper will offer, in Sections 2 and 3, an overview of such a process and its implications. Due to the particular focus of this special journal issue, Section 4 will be devoted to the analysis of the EU and Member States’ responses to the new human rights obligations in the field of copyright and disability. Section 5 will conclude with an assessment of the current regulatory framework and its coherence with the goals set by international human rights treaties, emphasizing its strengths and weaknesses and proposing further areas of intervention necessary to achieve the most comprehensive access and participation to culture possible for persons with disabilities by using the tools offered by copyright law.

2. The human rights framework: the right to culture …

The right to take part in cultural life finds its first source in Article 27 of the Universal Declaration of Human Rights (UDHR) of 1948, which recognizes the right of everyone ‘freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’, and links to it the authors’ right ‘to the protection of the moral and material interests resulting from any scientific, literary or artistic production’. The language of the Declaration – an originally non-binding document that soon became part of customary international law (inter alia Hannum 1996; De Schutter 2010, 50 ff.) – was later recalled by Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, which split the text of Article 27 UDHR into three prongs, emphasizing the autonomous relevance of each of the three rights listed in the provision. Both the UDHR and the ICESCR show that, since the beginning of the history of international human rights, access to knowledge and the protection granted to authors to incentivize its further generation have been considered as two intertwined aspects of the same phenomenon. However, nothing is specified with regard to their actual interaction.

Despite such a clear indication, cultural rights did not manage to find their way into the international IP debate until recently. Yet, the phenomenon was not only copyright-related. In fact, for some time international institutions have largely neglected cultural rights, without offering to states any guidance for their interpretation and implementation. The trend was so visible that cultural rights have been described as the ‘Cinderella’ of human rights (Donders 2007, 232), relegated in a shadowy corner for a set of concomitant, overlapping reasons. Historically, the realization of civil, political, social and economic rights had long been considered the real priority, and surely a prerequisite for the development of any type of cultural manifestation (Konate 1992, 12). In addition, the vagueness of the concept of culture has not helped in defining the meaning of cultural rights, which were already penalized for their hybrid individual and collective nature and the frequent overlap of their scope with that of other human rights (ECOSOC 1987, §§ 11 ff.; Meyer-Bisch 1993, 17). The situation was made even worse by the lack of a consistent, unitary reading of the multiple sources regulating state obligations in the field (Helfer 2007, 977).

However, from the mid-1990s, several unrelated events have brought cultural rights under the spotlight. While the misappropriation of traditional knowledge and the related public outcry against well-known corporations emphasized the strong link between culture, identity and development (ex multis Dutfield 2001; Arewa 2006; Reid 2010), and an increasing number of studies pointed at the importance of participation to cultural life for the full enjoyment of other human rights (reported by Reichman et al. 2007), the largest contribution to the process came from the Internet and the new opportunities offered by digital technologies for the creation, dissemination and regeneration of knowledge. The close interrelation between access to knowledge, education, and participation in cultural life, strengthened by the ‘information highways’ opened by the World Wide Web (Goldstein 2003), made evident how prismatic and dynamic the n...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Citation Information
• Notes on Contributors
• Preface: Enabling persons with disabilities to be active citizens through the use of new technology. The DISCIT project
• Introduction: Fostering accessible technology and sculpting an inclusive market through regulation
• 1. Disability, right to culture and copyright: which regulatory option?
• 2. Robotic prostheses as products enhancing the rights of people with disabilities. Reconsidering the structure of liability rules
• 3. Does accessible technology need an ‘entrepreneurial state’? The creation of an EU market of universally designed and assistive technology through state aid
• 4. Public procurement as a means to achieving social gains – progress and challenges in European legislation and standards for accessible information and communication technology
• 5. Transnational convergence of public procurement policy: a ‘bottom-up’ analysis of policy networks and the international harmonisation of accessibility standards for information and communication technology
• 6. Enforcing eAccessibility: is the current legal framework adequate?
• 7. A legal perspective on body implants for therapy and enhancement
• 8. Assistive technology as support for the exercise of legal capacity
• Index