New technologies have opened the door to greater access for millions of people who are visually impaired, yet copyright law frequently stands in the way. This is particularly true in the developing world, where digital works are often unavailable due to legal restrictions. On June 17, delegates from around the world will gather in Marrakesh, Morocco for a diplomatic conference to negotiate the final text on a new United Nations treaty that is designed to improve access to copyrighted works for people who are blind or have other perceptual disabilities.
The Treaty for the Visually Impaired, which has been the subject of years of discussion at the World Intellectual Property Organization, seeks to address the access problem in two ways.
First, it establishes minimum standards for copyright limitations and exceptions for the visually impaired. Many developed countries (including Canada) already have some exceptions, yet standards vary widely with some rules now too outdated to take full advantage of new technologies. Moreover, exceptions are frequently missing entirely in developing countries.
The treaty would address the exception problem by establishing minimum requirements for all countries. These exceptions include the right to reproduce or distribute copyrighted works in accessible formats for the visually impaired. It also includes the right to make changes to a work to ensure that it is accessible.
Second, the treaty would facilitate the export of accessible works. Most countries do not permit the export of accessible works on copyright grounds, leading to wasted expense to make the works accessible in multiple countries. The end result is that the visually impaired in each country have access to only a small sliver of the total number of works that have been made accessible worldwide.
Given the narrow goals of promoting greater access for the visually impaired, the treaty should seemingly have been relatively uncontroversial. The early stages of the negotiations, which were based on a World Blind Union proposal, centred on issues such as the scope of the treaty (opponents successfully excluded the hearing impaired) and whether the proposal should be a treaty or a non-binding declaration.
The negotiations led to many compromises, but by last year, the initiative appeared headed toward a binding treaty that would make a significant difference in the lives of millions of people.
Over the past few months, however, lobby groups have pressured the U.S. and European governments to water down the treaty to the point that groups representing the blind fear it may do more harm than good.
For example, the Motion Picture Association of America has been pushing for additional limitations on the minimum exception requirements that would complicate the rules to the point of rendering them virtually unusable. Moreover, several countries are also promoting a “commercial availability” requirement that even non-profit groups say would constrain their ability to make accessible works available to the visually impaired.
The treaty has also lost a provision that would have allowed countries to use the law to address limitations on access buried within the fine print of publisher contracts. That provision has now been removed, opening the door to contracts that effectively trump the rights established in the treaty.
In fact, the U.S. has also lobbied to undermine a provision on digital locks that would have allowed the visually impaired to circumvent technological restrictions in limited circumstances. Canada included such an exception in its most recent copyright reforms, but the U.S. has promoted language that is at-odds with current Canadian law.
The Treaty for the Visually Impaired marks a long-overdue effort to ensure that everyone benefits from emerging technologies that open the door to greater access of digitized works. The Canadian government has been largely silent on the treaty, but has a chance later this month to take a strong stand in favour of the rights of the visually impaired.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.