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

Abstract

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.

Keywords:

• copyright
• access to and participation in cultural life
• persons with disabilities

Conflict of interest disclosure

No potential conflict of interest was reported by the author.

Notes

1. Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society, OJ 2001 L167/10.

2. The Committee supports its statement by underlining that, in fact, copyright differs from other human rights for it is limited in time and scope, and its economic aspects can be forfeited, assigned or licensed (ECOSOC 2006, § 2). The denial of Article 15(1)(c) protection to corporation stands in clear contrast to the global trend towards the protection of intellectual property rights owned by legal entities under the umbrella of the human right to property (Helfer 2008, Yu 2007, Kaustiala 2007).

3. GC no.21 makes reference to the UNCRPD and other international human rights treaties and conventions touching upon the right to culture in its introduction (§ 3) without providing any further details on the possible interplay between Article 15(1)(a) obligations and those arising from other international instruments.

4. UN General Assembly, Resolution adopted by the General Assembly on the report of the Third Committee (A/48/627) concerning the Standard Rules on Equalization of Opportunities for Persons with Disabilities, UN Doc. A/RES/48/96, 4 March 1994. The equalization of opportunities is meant as ‘the process through which the various systems of society and the environment, such as services, activities, information and documentation, are made available to all, particularly to persons with disabilities' (id., § 24).

5. In paragraph (e) of its Preamble, the UNCRPD recognizes that ‘Disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’.

6. Anyone who is blind, for example, ‘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 disability’, or to any person ‘with any other disability who, due to that disability, needs an accessible format’.

7. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ 1996 L77/20.

8. Communication from the Commission 'A single market for 21st century Europe’, of 20 November 2007, COM(2007), 724 final, which defines the free movement of knowledge as the 'Fifth Freedom’.

9. Commission Green Paper ‘Copyright in the Knowledge Economy’, of 16 July 2008, COM(2008) 466.

10. Communication from the Commission ‘Copyright in the Knowledge Economy’, of 19 October 2009, COM(2009) 532 final, at 8–9.

11. The definition also specifies that the disability should result ‘in the inability to read commercially available standard editions of works', and the beneficiary could be assisted ‘by reformatting the content (but, for avoidance of doubt, requires only a change to the graphic presentation of the original text and does not require the text itself to be re-written in simpler terms to facilitate comprehension’ (MoU 2010, 2).

12. Communication from the Commission ‘European Disability Strategy 2010–2020: a Renewed Commitment to a Barrier-Free Europe’, of 15 November 2010, COM(2010) 636 final.

13. Commission Report on the Responses to the Public Consultation on the Review of the EU Copyright Rules, July 2014, available at http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/docs/contributions/consultation-report_en.pdf (last accessed 15 April 2015).