May 4, 2017 SCCR 34 Discussion on Limitations and Exceptions for people with other disabilities
If the final text of the Marrakesh Treaty had included Article 15(b) of the 1st version of the treaty negotiating text (SCCR/18/5) that would have clearly covered “other disabilities”, we would not have had the morning discussion.
Here is what had been drafted with the approval of an inclusive group of disabilities experts:
ARTICLE 15. DISABILITIES COVERED
(a) For the purposes of this Treaty, a ‘visually impaired’ person is:
a person who is blind; or
a person who has a visual impairment which cannot be improved by the use of corrective lenses to give visual function substantially equivalent to that of a person who has no visual impairment and so is unable to access any copyright work to substantially the same degree as a person without a disability.
(b) Contracting Parties shall extend the provisions of this Treaty to persons with any other disability who, due to that disability, need an accessible format of a type that could be made under Article 4 in order to access a copyright work to substantially the same degree as a person without a disability.
However, since “other disabilities” has not be included, the Committee is now commissioning a survey and a study. Here is the morning excellent presentation by Professor Reid, his students, Gabriel Daily and Nick Ewing and colleague Professor Mcube and questions from WBU, Libraries, KEI and EFF.
We are also here with professor Carolyn Ncube, our colleague from the university of cape town. We are grateful to have the opportunity to collaborate with her.
So the goal today is to give you a progress update on a study that was commissioned during the 30th session of the standing committee. The Member States requested that the Secretariat commission a study on limitations and exceptions for persons with other disabilities not currently covered by the Marrakesh VIP treaty and we jumped at the chance to get involved in this work.
It’s really important to us at the Samuel Glasgow clinic. One of the goals is facilitating equal access to the democratic, cultural, social benefits of information age for people with disabilities. We had the opportunity to do some work with G3 ICT on third pitch party closed captioning and copyright and this work builds off that.
So we had an opportunity also to speak to you in November to give you an idea of where we will get started with this study and we have been gathering feedback from disability stakeholders on current and future trends in accessibility technology, and we are excited to give you an update today on that. So let me give you a brief agenda and the agenda first is to run through the categories of disabilities and the corresponding categories of protected work that will be the focus of this study.
And then using both of those to talk through the different accessibility technologies and techniques that are now evolving, are — or will be evolving in the near term to start to address some of the challenges that people with those categories of disabilities face in accessing those categories of copyrighted works.
And then we are briefly going to talk about the implications for copyright and related rights. We will speak to you much more about that at the November session with the benefit of responses to the Member States questionnaire. I will say a little built more about that at the end, but we have started to get input about your national laws, and how they relate to these issues we are grateful to the responses that we have gotten so far. We will do a more fulsome analysis of that at the next meeting, but today we’ll give you a preview.
Let me just say this is intended to be forward looking, but it’s not intended to be exhaustive. We don’t claim that it is exhaustive of all of technology and all of the needs of the disability community. We have really endeavored to get feedback from the disability community but we also don’t claim any particular endorsement or that it represents all of the needs of the various disability communities, which are quite diverse and we hope to continue collecting feedback in that regard as we move along.
Let me just say very quickly about the scope of the study, you will hear some overlap with both some of the beneficiaries that are covered under Marrakesh and some of the works that are covered under Marrakesh and we don’t do that to be duplicative of Marrakesh but rather because there are some challenges that people with print disabilities face in accessing works not covered under Marrakesh and likewise, there are some challenges facing people who have disabilities other than those described as beneficiaries in Marrakesh to Marrakesh covered copyrighted works. But we are not studying the subject matter of Marrakesh. So I just wanted to make that clear up front.
And with that, I will turn it over to Gabriel.
>> GABRIEL: It is important to discuss interaction of disability and protected works because disability is a growing concern internationally. According to the WHO, approximately 15% of the world’s population or 1 billion people are currently living with a disability. Disabilities disproportionately affect those in developing countries and the rate of disability is on the rise.
In 2006, the UN held the Convention On the Rights of Persons with Disabilities, hereafter referred to as the CRPD. The CRPD’s human-rights based conception of disability is a shift from medical models which viewed disable as a limitation impeding full participation in society.
The human rights based conception of disability emphasizes certain contextual barriers which can be ameliorates to expand access for persons with disabilities.
Provision 33 of the CRPD directs parties to ensure that intellectual property rights are harmonized with the goal of providing access to cultural materials for persons with disabilities. While each individual with a disability faces unique challenges, it is useful to define several distinct, broad categories of disabilities and protected works in order to recognize common needs of these populations when accessing protected works.
This study has identified multiple categories of disability and protected works. Oral, visual, cognitive and physical.
>> People who are deaf or hard of areaing face challenges to accessing audio. People with aural dessables sufficient as deafness, hearing imperative, or deaf blindness may be unable to perceive audio adequately and accordingly require a transformation of audio works or components of audio visual materials such as music, spoken word materials like podcasts, movies, television, user generated video.
People who are blind or visually impaired face challenges facing visual works. They may require transformation of visual materials or the components of audio visual materials. These works must be at least partially transformed into a medium that is not dependent on visual information. The information that is conveyed visually must be transformed into an audio description of information, or a tactile description such as braille, for the person with the visual disability to successfully perceive the content.
People with cognitive and intellectual disabilities face a spectrum of challenges to accessing a range of copyrighted works, including literary, visual, audio, and audio visual works. Cognitive and intellectual disabilities include genetic disabilities such as Down’s Syndrome, learning disabilities like dyslexia, brain illness from illness and drama, and dementia. These disabilities while related in their cognitive basis expressed differently and therefore require a range of transforations to adapt protected content for people with this type of disability.
Many common cognitive disabilities express as difficulty in processing complex information, requiring a transformation of material into more easily understood forms. This is often referred as to a plain and simple language transformation, though there are related techniques.
People with physical or motor disabilities may be unable to Interac physically with interfaces to copyrighted material, including visual, audio, and audio visual materials.
For example, someone with a physical disability may face challenges in accessing content on their computer and may require a transformation of software to function on voice rather than physical inputs, in order to access computer content such as web pages or video games.
People with multiple disabilities face unique challenges as different or multiple transformations are required to access content across media. For example, a person who has both cognitive and aural disabilities may require both captions and plain and simple language transformation of those captions to access aural content.
An individual who is trying to access content made inaccessible to them by their disability, may require a transformation of the underlying content in order to success fly access the material. Access to content is usually provided by some type of assistive technology that converts the material. There’s a wide range of techniques that can make them accessible to those with disabilities. The diversity of technologies also represents the array of transformations across a range of media needed for different disabilities.
Some examples of corresponding assistive technologies include closed captioning, audio or visual description, simple language versions, automated adaptation technologies, simultaneous tactile, aural, visual presentations for people with deaf-blindness, virtual reality, and augmented reality.
Now, let’s turn to look at some examples of these technologies at work. Closed captions transform the audio and audio visual content into text, which a person with aural disabilities can access by reading.
Audio description also referred to as video description is an aural description of visual content in audio visual or visual work that allows persons with disabilities to perceive the visual component.
>> Plain and simple versions of text transform complex information into six. Vocabulary to facilitate comprehensive for persons with cognitive disabilities. These transformations must be tailored to the comprehensive level to the individual in question. Which presents a difficulty in making the plain and simple languages widely available as each individual person’s needs vary.
>> The following new technologies have created the possibility of greater access to protected works for people with disabilities. Digital assistance, virtual reality, machine learning and automation.
New virtual assistance rely on voice commands from the user to perform a variety of tasks. While they can increase access for some people with disabilities for example those with visual or physical disabilities the devices present accessibility challenges for those with speech disabilities.
As advances in virtual reality and augmented reality technology continue, it is likely that this technology could be used to increase access for persons with disabilities. For example, someone with a visual disability may use a device that transmits video to a cloud-based automated or crowd sourced service, which describes the person’s surrounding Oz orally to them in realtime or vicea versa by projecting captions of nearby audio sources to a heads up display. If the visual objects include protected work US as a sculpture, song or picture being displayed this could implicate copyright.
Machine learning has the potential to significantly expand access for persons with disabilities to a variety of media by automating the necessary transforations. Machine learning can generate closed captions, audio descriptions and plain and simple language versions and can do so at a scale that has the potential to dramatically increase the number of accessible works for persons with differing disabilities.
The video sharing site YouTube has already imply mated automated captioning. As of now the quality of these captions varies widely but quality may improve or be easily supplemented by human editors to facilitated wider deployments of automation.
Another area where machine learning has the potential to expand access significantly is for people with cognitive disabilities. Because a computing system endowed with machine learning can convert complex text into plain and simple language, tailored to the comprehension of an individual. It’s difficult to accomplish because of the level of individual tailoring needing to make the content accessible for an individual. Machine learning can simplify this process and provide a person with a format tailored to their unique needs. This conversion to plain and simple text is arguably a transformation that implicates the rights of copyright holders. Because it’s a protected work for derivative work. It’s necessary to think prospectively about how copyright can facilitate access for persons with disabilities.
>> The various types of works that would be rendered may be subject to copyright. The copyright holder would have exclusive economic rights which include reproduction, translation, adaptation, distribution, performance, communicating or making available to the public and display.
Where related rights protection is applicable, it intends to fixation, broadcasting and communication and the reproduction of fixations of performances and a certain instances it includes producers rights over the reproduction, importation and distribution of originals or copies of sound recordings and entitlement to equitable remuneration for broadcasting and communication to the public of sound recording.
Here’s an example that illustrates an instance where copyright and related rights are applicable. Where broadcast of a live dance performance on TV is rendered accessible to people with aural disabilities through the use of closed captions and/or accompanied by an audio description to enable access to persons with visual disability. Copyright will subsist in the sound recording, the choreographic work and the broadcast, performance producers and broadcaster rights will also be implicated. The creation of accessible formats will have to be in terms of an exception or limitation or a license.
They may be statutory accessibility imperatives to obligations that require first party or copyright holder initiatives and they may be certain voluntary or contractual arrangements in place that in practice this may be insufficient, making exceptions and limitations important.
In certain jurisdictions it may well be that the certain specific limitations and exceptions are already in place or it could than there’s a general exception such as failures that could prevention the accessible format of the work.
Narrowly structured and construed do not facilitate the rendering of accessible formats in all cases because they have a closed list of permissible purposes. This is established in each Member States.
>> BLAKE REID: So that brings us to the close, the Member States questionnaire, which hopefully you all received. We did our best to make it mercifully short. We are primarily trying to get information about just a couple of things. And the first one is how does your national copyright law address accessibility whether explicitly or implicitly or perhaps not at all. Any detail that you can provide, any additional resources citations, all of that sort of thing is greatly appreciated.
The secondary thing that we are interested in learning about is if your country has a national accessibility law like the Americans with Disabilities Act in the United States, and what interactions, if any, you have thought through, whether in the context of legislation or in the context of court cases of how that national accessibility law interacts with your copyright laws.
So you should have received that already. If you have not, I believe the folks down the row here can help get a copy of it to you.
We have asked folks to submit those questionnaires by June 2nd, but we appreciate truly, any input that you can provide. The next phase of the study will be taking the responses to the survey and doing what we hope will be a really interesting analysis to look through how different countries are approaching this. Like I say, we have received several responses to this already and have done a little bit of original research on it, but we hope to have something comprehensive to present for you the next time around.
So with that, I will — I will leave the presentation there and I think we will turn to questions.
>> CHAIR: Thank you to the professors Ncube and Reid and to Lindsay, Gabriel and luke for taking us through the presentation. And for giving us an overview of the challenges that people with other disabilities face and how that can be — how that interacts with copyright regime and the related rights.
I will now open up the floor for presenters and I would like to invite members to give your views or to seek clarification or to react to the presentation.
The floor is open. Maybe I can get the ball rolling with a question that’s close to my heart. One of the challenges that we face in Singapore is we have a fairly sizable number of people with visual disabilities and of course hearing disabilities. When we implemented the Marrakesh Treaty and I think we were one the first ten countries to do so the feedback that we got from them, right, after about one year of implementation is that the cross border aspects of the — of the — of this issue, right, was really important. And in a nut shell, even though they were given the right to have the disabled materials, there were other countries where the bulk of these materials were being produced.
Did you have the same feedback from smaller countries? I know that UK and US are two of the countries with a lot of that activity going on, just would love to hear your thoughts on the cross border aspects.
>> BLAKE REID: Yes, it’s definitely an issue that we are thinking a lot about. I don’t feel like we have enough of responses to the survey yesterday to speak definitively on it, except to say that it’s obviously an issue that was explored in a lot of depth in the context of Marrakesh and I think these new technologies will force us to reexamine the cross border aspects in sort of a new way.
For example, you can imagine if a machine learning service is operated in one country and used in another, it might raise some of those issues and we can think of some other pretty easy hypotheticals off the top of our head. It’s something that we will be taking a hard look at in the study.
Argentina took the floor to explain the difficulties in implementing some of the cross border possible provisions for people with other disabilities.
>> BLAKE REID: I think it’s a positive step to consider expanding the list of disabilities to include cognitive and intellectual disabilities. And I think we will see some of that and have seen some of the sort of expansions in the context of Marrakesh implementations and in the responses we have received already. So that’s definitely one possible approach. The question is whether the scope of works covered under Marrakesh is sufficiently exhaustive. So, again, think about audio visual works, obviously we are worried about closed captions, audio descriptions and those sort of things.
So I’m not sure if — if that covers the waterfront to expand the list of disabilities but it’s certainly an important step and I think a good start.
Caroline, did you want to add anything to that?
>> Caroline Ncube: I would only suggest if a country is expanding the list of disabilities in the domestic legislation, that’s probably apt to also extend the list of works because if you keep it to the Marrakesh works that will not be sufficient.
>> CHAIR: I now call on the delegate from the United States of America. You have the floor.
>> UNITED STATES OF AMERICA: Thank you, Mr. Chair.
One of the central concepts in the Marrakesh Treaty was, of course, the notion of an authorized entity, which had a very specific focus and context in that treaty.
I would be interested to hear more while we have such an array of experts with us. What corollary groups to authorized entities are there currently there to meet the range of disabilities that have been discussed this morning?
This is really a question of fact, rather than law, but I would be quite interested to hear about that.
>> BLAKE REID: It’s a really important question, and I think in the cognitive and intellectual disability space, the — obviously because there’s no specific copyright exception in the United States addressing that in particular, there’s no formal definition of an authorized entity such as it is. But in our conversations of both cognitive and intellectual disability stakeholders, the primary group that is engaged in the sort of transformative works that has to happen is educators. So both in the context of sort of elementary school up through, you know, sort of K. through 12 education, there are a lot of disability services, professionals who specialize in adapting curricula for people with cognitive and intellectual disabilities.
And so if you were to think about, you know, sort of defining a class of entities that might be engaged in that kind of work, I might start there, but obviously we don’t — we don’t have any legislative examples to work off yet, so I can’t answer directly but it’s something we will be thinking about in the study.
Mexico took the floor:
But also in force, not only in Mexico is the possibility of providing access not only to people with visual disabilities, but with all other disabilities. So not only current Mexican legislation covers what’s provided for by Marrakesh. It also covers all other disabilities, and this is a law that’s in force in our country, and it was introduced to cover all of our international human rights obligations to which Mexico has subscribed.
Just a question following on the one asked by Argentina. We have been talking here about the need or not to have binding international treaty on exceptions. We already have one of these examples which is the Marrakesh Treaty and I just wanted to know, in the replies that you have already received whether you can see an impact and whether if there are greater exceptions now in this area because there already is a treaty. I think the value of your study which is going to cover all disabilities will be to analyze this possible difference. Of course the treaty hasn’t been in force very long. So the analysis may be preliminary. It would be interesting to confirm the impact of an international treaty on exceptions for the purpose of national implementation.
>> BLAKE REID: I say we agree and we intend very much to look into that during our analysis. Thank you for the suggestion. We will try to do some longitudinal tracking as the legislation has come, in after that adoption of Marrakesh. Thank you.
I don’t know if this is too early but in your preliminary survey, would you inbound a position to speak about particular exceptions for persons with disabilities that you find a commonalty across many Member States and in that regard, would be an easier platform to gain consensus amongst Member States for pushing exceptions in those areas?
>> BLAKE REID: Thank you very much for the question. I will sound like a broken record here and we are too preliminary a stage to answer that question, but that is definitely one of the goals of the study, is to see if there are common threads, whether that’s through implementation of Marrakesh or through other statutes that countries have adopted either in advance of Marrakesh or since. We will definitely be looking for those threads and hope to have something interesting to report back to you about next time.
WORLD BLIND UNION:
Do you feel that it’s discriminatory that a person with disability, in this case, visual disability, would have to put up either the authorization or the entity or state with a greater cost of remuneration and compensation when many other types of exceptions to copyright of sighted people there’s no compensation at all.
I have been told by legal experts that it could be a violation of rights of persons with disabilities and it is a violation of the charter family rights.
>> CHAIR: Go ahead.
>> BLAKE REID: We appreciate the question. I don’t know that we will be taking a position one way or another in the paper, but the issue ever remuneration is certainly something that we will be looking at in our analysis and hopefully the study will be useful in illuminating the debate to which you are referring and provide some additional data points that folks can look to in terms of which countries have taken which stances on the issues you raise.
So we appreciate the question and we will make sure to address it.
We had two questions which follow on from both the one posed by my colleague from the World Blind Union and the Chilean delegation. Clearly we have engaged closely on the Marrakesh Treaty and welcome progress towards effective ratification without unnecessarilyharmful barriers to the effectiveness of provisions. The work the European Commission on this has been work admiral as the opposition of some national governments has been regrettable. Given the lack of evidence on piracy or measures such as commercial available checks or supplementary remuneration such as mentioned by my colleague here over and above the costs of buying and converting texts. What measures there are for maintaining. This.
Secondly what extent would WIPO’s commitment of Article 30 on the convention of rights of persons with disabilities to take part in cultural light on an equal basis with everyone else?
>> CHAIR: Before I ask Blake to answer, right, I have to — and I understand the passion in which the NGOs have on these issues, but the scope of study, may not necessarily go towards the questions and the issues that you are raising. Nevertheless, I would ask Blake to share your thoughts. It may or may not be within the scope of the study.
>> BLAKE REID: I will answer it two ways, which is to say on the one hand, taking a normative position and the very important questions you raise is probably beyond the scope of the study, but we will do our best to identify these points of contention and identify arguments on both sides and to the extent that that further aids the discussion around both of them.
We will do our best to — to touch on those points. He would appreciate it. Thank you — we appreciate it. Thank you.
>> CHAIR: I call upon the representative of knowledge psychology, you have the floor, please.
KNOWLEDGE ECOLOGY INTERNATIONAL
I think that the Marrakesh Treaty was a step back in terms of the inclusiveness that you saw in the U.N. Convention, and then in some countries’ legislation.
And I want to point out in SCCR/18/5, Article 15, subparagraph b this was the original version of the treaty that became the Marrakesh Treaty and it was submitted by Brazil, Paraguay, Ecuador on the — this was the initial negotiating text. It was based on the WBU draft. The WBU draft initially, which we worked on at the time, had this language which says Contracting Parties shall extend the provisions of this treaty, to persons with any other disability who due to that disability needed an accessible format of a type that could be made under Article 4 in order to access a copyright work to substantially the same degree as a person without a disability, period.
This was dropped from the Marrakesh Treaty. So my question to the experts would be, could WIPO consider at a General Assembly meeting a joint recommendation along the lines that countries who implement the Marrakesh Treaty should include something along the lines of what was in Article 15d the SCCR/18/5, along with a — you know, and whatever additional text is needed to address the unfortunate narrowing of the works which were covered under the Marrakesh Treaty.
We have seen these issues arise several times in the United States. There’s actually ongoing litigation now, for example, about song lyrics being excluded from closed captions over concerns that are apparently rooted in licensing disagreements and that sort of thing.
So this is an issue that has had some real practical concerns for the deaf and hard-of-hearing community, and that is one of the reasons we endeavored in the scope of the study to make sure to include that.
Likewise, I’m not sure that the issues are in cognitive and intellectual disabilities to what extent they came up during the discussions around Marrakesh, but the folks we have spoken to in that community are very interested in seeing these issues get addressed. There are educators that are very worried about these issues. So we appreciate the spirit of the comment and we’ll try and make sure that the study is inclusive in terms of describing all of these issues.
>> With the chairman, we thank the experts and I have very short question. According to humanitarian law and the rights of a person with disabilities, would you agree that member countries that do not have adequate copyright law or to province full access to all types. Works for persons with print disabilities under noncompliance with their international obligations with regard to persons with disabilities?
And if it is so, what do you think should be the role of WIPO?
>> CHAIR: I think, again, right, I would — I would say that questions of this nature are interesting but I think Professor Reid that’s not really within the scope of the study. I would still ask blake if you want to respond to that, but I believe in several questions of this nature it’s something that you would take on board and you reflect the discussion of both sides but, please, you have the floor if you wish to respond to that?
>> BLAKE REID: No, I think you said that. Answering that question directly is probably beyond the scope of the study but as you heard the beginning of presentation, which we began with reference to the CRPD, I think that’s an issue we will at least describe, although, I don’t know that we will reach a normative conclusion.
>> ELECTRONIC FRONTIER FOUNDATION:
>> BLAKE REID.: The short answer is yes. I appreciate you bringing that. Up a lengthy history of working through this particular issue in the United States in the context of the Section 1201 review but to the extent that the Member States have experience with this or have addressed the particular issue of technological proal techion measures or digital rights measurements organic statutes or implementation of Marrakesh, we would be key to learn about that in your responses to the survey. So we will definitely, to the extent that we get responses on that, be addressing that in the survey.
It’s in the legislation and despite our concerns about the possibility of difficulties, particularly, for example, we did nevertheless cover those who are therefore hard of hearing, who have learning difficulties, because they do need the intermission of sign language. A person would cannot read, who is blind, cannot go to the text because they don’t have the sound of a vowel, a syllable or a word. They need one of the parents or another person through sign language, give them access to the written word, but after some years of learning sign language, they can then read for themselves and no longer need special — specially changed works.
But that is still a problem at the transborder level, while we can establish broad exceptions nationally, we cannot yet resolve the problem at the international level. So once again, I express my delegation’s concern and wish that we look at the transborder aspect of exceptions and limitations for those who have cognitive disabilities other than visual disabilities.