Comments on inadequacy of voluntary measures to ensure equal access to copyrighted works for persons with reading disabilities

In discussions about a possible WIPO Treaty for persons who are blind or have other reading disabilities, there have been suggestions by some that voluntary licensing by rights holders presents a sufficient solution to the problem. I studied several publications since 1985 to take a closer look at this viewpoint and find out what were the common perceptions.

Below are some quotes from experts and stakeholders, arranged chronologically, addressing the effectiveness of voluntary licensing in providing access for reading disabled persons to works in accessible formats. Notably, experts and stakeholders have consistently reported on the failure and inadequacy of negotiations to obtain the permission of publishers and copyright owners, in producing accessible works for reading disabled communities and remedying the extraordinary paucity of accessible published works.

June 1985. Wanda Noel. “Problems Experienced by the Handicapped in Obtaining Access to Protected Works, taking into account, in particular, the Different Categories of Handicapped Persons,” Annex II of the report on “Copyright Problems Raised by the Access by Handicapped Persons to Protected Works,” Executive Committee of the International Union for the Protection of Literature and Artistic Works (Berne Union) and Intergovernmental Committee of the Universal Copyright Convention.

“Voluntary Exercise of Rights: A second method of providing access to handicapped users is through individual negotiation. Individual negotiations are not satisfactory primarily because of time delays in obtaining permission to use the work. This system is used in those countries which do not have any special provisions concerning use by the handicapped in their copyright laws. The domestic law prohibits, usually indirectly, the production of special media materials or services without the authorization of the copyright owner. In order to produce these materials or services it is necessary to obtain the permission of the copyright owner. Permission is often subject to various monetary, territorial and quantitative restrictions. It is these restrictions which the handicapped seek to avoid.”

“The Report adopted by the Intergovernmental Committee of the Universal Copyright Convention, Fifth Session states:

The delegations of Finland, the Netherlands, the United Kingdom and the United States of America considered that exceptions to copyright were not necessary, as negotiations on a voluntary basis between the handicapped and the representatives of authors generally produced satisfactory solutions. … The delegation of the United States of America, for its part, considered that. .. the problems facing the handicapped did not stem mainly from- copyright but rather from a lack of financial means, ignorance of existing provisions and the absence of appropriate equipment.

Although scarce resources to meet the multi-faceted needs of the handicapped is a chronic problem throughout the world, it is respectfully submitted that negotiations on a voluntary basis cannot produce satisfactory solutions. The production of even one special media material or service requires the permission of the copyright owner. Many owners, quite correctly, feel that they are under no social obligation to give their property away and that this kind of social obligation is more appropriately met by society as a whole. In short, owners think it is unfair to isolate them for a compulsory charitable donation of property. Generally, copyright owners readily grant permission, often without charge. However, there are refusals. There are also lengthy delays in obtaining permission and conditions attached to the permission, such as restrictions on the extent of the use and the distribution of the materials and services. From the handicapped users perspective, the obtaining of permission is an expensive and frustrating exercise.

It is this frustration which has given rise to the work of UNESCO and WIPO with respect to the need of the handicapped for access to works protected by copyright.”

May 2006. Nic Garnett. “WIPO Study on Automated Rights Management Systems and Copyright Limitations and Exceptions,” WIPO Standing Committee on Copyright and Related Rights 14.

“Only a very small percentage of commercially published books and periodicals are made available by publishers in formats accessible by visually impaired readers. There is in some countries a commercial market for a limited range of “accessible” material, but large print books and unabridged audio books almost always cost more than the “standard” version. Most accessible material is today still created by specialist agencies operating on charitable funds or social subventions. This means in practice that only a small proportion of the material published currently becomes available in accessible formats. In the United Kingdom, for example, it is estimated that only around 5% of published titles ever become available in accessible formats, and it is rare indeed for the accessible version to come out until months or years after the original.”

“…at present, neither the market nor technology appears to be supporting a basis for facilitating the access to information by visually impaired people in a way that is consistent with the general standards for the full social and economic integration of people with disabilities.”

September 2006. Judit Sullivan. “WIPO Study on Copyright Limitations and Exceptions for the Visually Impaired (SCCR/15/7),” WIPO Standing Committee on Copyright and Related Rights 15.

“Licensing to permit activity for the benefit of visually impaired people is likely to be helpful both to cover what happens within a country and, as discussed above, how accessible copies might move between countries. This is likely to be the case even where legislative provision provides for much useful activity. In the case studies, a number explore what is happening in countries that have reasonably good provision of copyright exceptions, but where licensing arrangements are still permitting other useful activities. The problem with licensing is, of course, that it is not always easy to find or engage with the right copyright owners and more useful blanket or collective licensing agreements are not always possible.”

Report of the World Blind Union (WBU) and Knowledge Ecology International (KEI) Meeting on a WIPO Treaty for Blind, Visually Impaired and Other Reading Disabled Persons, KEI Offices, Washington, DC on July 24–25, 2008.

“Under copyright law, authors, or the publishers who acquired rights from authors, normally have the exclusive right to permit the publishing of works. Sometimes these rights are divided among right owners by geography, or by the format, edition or a time period for publication. According to the meeting participants, it is often quite difficult or impossible to obtain permissions from copyright owners to publish works in accessible formats.”

April 2009. Comments to the United States Copyright Office and the United States Patent and Trademark Office in response to the “Notice of Inquiry and Request for Comments on the Topic of Facilitating Access to Copyrighted Works for the Blind or Persons With Other Disabilities” published in the Federal Register on March 26, 2009 (Volume 74, Number 57, pages 13268-70).

George Kerscher, Secretary General of the DAISY Consortium
“An international copyright exception, similar to that proposed by the WBU is essential now and will probably be needed for many years to come. It is unlikely that mainstream publishers will ever cater to the very special needs of some disability groups. Tactile graphics and braille are examples of where libraries will continue to need an exception to provide materials in support of the mainstream version of the book purchased.”

James R. Fruchterman, CEO, Benetech
“Private Sector Initiatives. We believe that these have been largely unsuccessful in delivering substantial numbers of accessible books. Disability access is often linked with potentially promoting piracy, and technology vendors and publishers have regularly locked people with print disabilities out of the electronic book market. Our paper, the Soundproof Book, talks about the background of this problem. In contrast, with supportive laws in place internationally, successful nonprofit models, such as Bookshare in the US or RNIB in the UK, could be utilized to deliver books to fill the market gap.”

Marc Maurer, President, National Federation of the Blind
“Unfortunately, our efforts to date to bring this about through cooperation with publishers and other text rights holders have not been successful. In discussions, rights holders have expressed concerns about the “leakage” of material made available to the blind into the general market, where the material might compete with other products. More to the point, rights holders do not regard the blind (and other people with print disabilities) as potentially significant markets, and are therefore unwilling to re-imagine their general distribution practices and business models to promote accessibility. Many publishers do make limited voluntary donations of recorded books (as distinct from e-books) to special services such as RFB&D). Welcome as these contributions are, they are no substitute for efforts to promote accessibility as a general proposition.”

John Kelly and Brad Thomas, Recording for the Blind & Dyslexic (RFB&D)
“The legal impediments to transnational access are the result of different copyright laws in different countries. Navigating the multiple rights that publishers may have to works distributed in other countries can also make obtaining copyright permission without a broader exemption a significant barrier.”

Judit Rius Sanjuan, Attorney, Knowledge Ecology International
“Independent of the existence of a national copyright exception for reading disabled persons, the survey shows that accessible books produced under voluntary licenses provided by the copyright holders are nearly non-existent among the countries surveyed.” (In this “Survey on Accessible Books in Spanish-Speaking Countries”, responses represent data from seven countries: Argentina, Chile, Colombia, Mexico, Nicaragua, Spain and Uruguay.)