https://orcid.org/0000-0002-8055-7786
Abstract
The Marrakesh Treaty entered into force in China on May 5, 2022. To fulfill its obligations and guarantee basic education access for visually impaired people, China revised its copyright law and introduced supporting measures for Treaty implementation. This article discusses various issues in designing a legal system for achieving ‘intangible accessible environments’ for visually impaired people in China and the priorities and possible shortcomings in transforming the Marrakesh Treaty into domestic law. Legislation must carefully avoid using specialized over-protection designs that could exacerbate the marginalization and social isolation of visually impaired people. Furthermore, it is crucial to refine the supporting system for Treaty implementation and strengthen sectoral synergies and international cooperation.
Introduction
The Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled (hereinafter, ‘the Treaty’) took effect in China on May 5, 2022. The Treaty is the first and only multilateral agreement combining human rights and copyrights to eliminate ‘book famine’ for visually impaired people worldwide. All signatories must introduce special limitations and exceptions in their national copyright rules to permit conversions of copyright-protected literary works into accessible formats for visually impaired people and cross-border exchanges of accessible format copies.
China houses approximately 17.32 million visually impaired people and more people with other print disabilities. Although most print books can be converted into accessible formats, more than 95% of published works worldwide are inaccessible to print-disabled individuals; thus, such persons do not have equal access to education, social culture, and political involvement (Harpur and Suzor Citation2014).
China’s Treaty implementation could improve its protection of disabled persons’ human rights and allow them to better participate in global human rights governance. Chinese officials and academics are now considering how the country can best build an effective, authoritative, and concrete mechanism for Treaty implementation. This article sought to review China’s legislative frameworks for protecting visually impaired people’s rights; accordingly, it mainly examined China’s Copyright Law as well as related supporting regulations and discussed some specific initiatives, shortcomings, and possible improvements the legislators made for practical Treaty implementation.
The pre-Treaty period: China’s legislative protection for visually impaired people
In China, the Law on the Protection of Disabled Persons (2018 Revision, LPDP hereafter), Regulations on Disability Prevention and Recovery of the Disabled (2017 Revision), and other provisions, which guarantee rights to disabled persons (along with different sectoral laws), constitute a protection framework for the disability community.
Regarding guaranteeing reading access rights to persons with visual impairment, Article 41 of Chapter V of the LPDP guarantees disabled persons’ right to equal participation in cultural life; Article 43(2) of that Chapter directs the government and society to organize and support the compilation and publication of Braille books, audiobooks, and other reading resources for visually impaired people. However, until China ratified the Treaty, Braille books were the only legitimate accessible format that could be published without copyright permission. The creation and usage of other accessible formats required rightsholders’ authorization.
For instance, in 2008, the China Braille Press produced a copyright-protected book in CD-ROM format and provided it to visually impaired people without the rightsholder’s permission. Consequently, a lawsuit was filed against the publisher; the court ruled that the publisher had infringed the author’s copyright and needed to compensate the rightsholder. In another copyright dispute from 2021, the defendant, a pro bono online platform providing services to disabled persons was sued for producing and facilitating public access to an accessible format of the film ‘I Am Not Madame Bovary,’ which was provided without proper licensing. The defendant raised a fair use defense during the proceedings, since Article 22 (12) of the Copyright Law (2010 Revision) stipulated that published works can be transliterated into Braille without rightsholders’ permission and royalty payments. However, the judge held that, under contemporaneous Chinese copyright rules, the fair use defense, which was only applicable to literary works, could not be extended to film works. Therefore, the defendant violated the plaintiff’s film-related copyrights.
While Braille is an essential tool for persons with visual impairment, relying on it as the only accessible format under copyright exceptions fails to meet their reading needs in China. Editing Braille books is complicated, resulting in lengthy publication cycles and high printing costs, which limits market supply. Additionally, Braille formats only benefit individuals who understands Braille, a skill that fewer than 10% of China’s persons with visual impairment possess. Digital technology has enabled visually impaired people to access information and cultural experiences through alternative formats such as audiobooks. These formats enhance social participation for persons with visual impairment, but widespread adoption has been hampered by copyright regulations. This highlights the need for legal frameworks that foster ‘intangible accessible environments’.
The measures taken for Treaty implementation
By the end of 2021, 1,315 barrier-free reading rooms had been set up in public libraries across China; these reading rooms housed 24,000 seats and over one million Braille books. These practices reflected China’s practical efforts to safeguard the human rights of persons with visual impairment.
Under the principle of Pacta sunt servanda (agreements must be kept), China must actively align its domestic copyright regimes with the Treaty stipulations. The Treaty’s core concepts, including ‘accessible format,’ ‘print disability,’ ‘authorized entity,’ and ‘beneficiary persons,’ should be embedded into Chinese domestic law. After a third amendment was made to Copyright Law (effective June 1, 2021), Chinese legislators completed their revisions, which were in line with the Treaty stipulations.
For example, Article 24 of the Copyright Law introduced the concepts of ‘persons with print disabilities’ and ‘accessible formats’ into Chinese legislation for the first time; it expanded the individuals who could benefit from the fair use exception (from ‘blind persons’ to all ‘persons with print disabilities’). This change is consistent with the Treaty’s concept of ‘beneficiaries’. Now, the application scope of the fair use defense in relation to visually impaired people was expanded from ‘transliteration of a published work into Braille’ to all ‘published works that are provided to the print disabled in an accessible way that they can perceive’; thus, the new clauses expanded the scope of beneficiaries and the authorized work types. It eliminated the previous situation, wherein the copyright rules listed Braille as the only legitimate accessible format. Furthermore, Article 50 of the Copyright Law added an exception to permit the circumvention of technological protection measures (TPMs) that had been imposed on copyright items to prevent illegal copying. These exemptions apply when the following criteria are fulfilled: a person provides a published work for print-disabled persons in an accessible way, through which the latter can perceive it; there is no profit-making purpose; and the work is not available through normal channels. This provision is accordance with the obligatory provisions of the Treaty, thus prioritizing beneficiaries’ enjoyment of copyright limitations and exceptions over rightsholders’ TPM implementations (Cao Citation2013); this balances rightsholders’ rights and social public interest.
Because the Copyright Law only provides principles for protecting visually impaired people and no concrete terms to ensure their application, on August 1, 2022 the Chinese National Copyright Administration issued the ‘Interim Provisions on Providing Works to Persons with Print Disabilities in a Barrier-Free Way’ to facilitate Treaty implementation; this further clarified the Treaty’s important concepts and specific rules. In particular, it plugged the legislative loophole of copyright laws regarding the cross-border exchange of accessible formats by establishing a notice filing system. In this context, countries with a common language can now share available resources, which increases visually impaired people’s ease in finding accessible format works.
Shortcomings in the Treaty implementation
Overall, the Treaty’s unique values and humanistic concerns are directed not toward creating special rights for visually impaired people but ensuring their equal access to knowledge. Regarding the first international copyright treaty in the human rights field, it should be understood using a human rights theory perspective (Li Citation2022). It is important because it affects legislative attitudes toward disabled persons and can affect their situation and status in society.
Nevertheless, rather than critiquing social barriers imposed on disabled persons, most signatories, including China, argue that the Treaty grants ‘privileges’ or specialized benefits to visually impaired people. China has mainly assigned the task of providing accessible reading formats to public libraries or other non-profit organizations, while restricting some author rights through legislation. This approach is still providing ‘special protections’ for visually impaired people based on the traditional disability-related views, which restricted the meaning of the Treaty to simple humane charity. This ‘special protection’ may create a manner of accessing works that is completely isolated from the market; this, in turn, may transform protecting the equal reading access rights of people with visual impairment into a common social assistance issue, which could greatly reduce private entities’ motivation to actively provide accessible information services—a development that contradicts the purpose of the Convention on the Rights of Persons with Disabilities. Disability is essentially viewed as limitations of participation, and one should not consider the provision of accessible reading services as a kind of social assistance, but rather as a reasonable response to the failure of a market-based system for publishing and distributing accessible works.
There are also some issues regarding the Treaty’s domestic transposition and implementation. For example, when China introduced the copyright exception rules, it did not formulate counter-restriction rules for copyright exceptions such as the ‘commercial availability requirement’; this could encourage unlimited copyright exception expansions and piracy problems, thus inducing disproportionate infringements on copyrights. Furthermore, the connotations of ‘authorized entities’ and ‘subject obligation clauses’ are still unclear in the context of China’s Copyright Law (Li and Selvadurai Citation2019); this could hamper relevant governmental organizations and social groups from accurately performing their duties. Noteworthily, institutional constructions for eliminating reading barriers involve copyright laws and, furthermore, library laws, publishing laws, disability laws, and so on. Thus, Copyright Law revisions must guide and influence related departmental laws’ revisions.
Proper Treaty implementation depends on the proper improvement of the corresponding supporting measures and mutual support, especially mutual cooperation among government departments, publishing houses, enterprises and industry associations, schools, media and other parties, as well as local- and international communities.
Conclusion
Individuals with visual impairment face environmental and structural barriers that limit their access to knowledge and education, which in turn affects their social participation, leading to loneliness and social isolation (Macdonald et al. Citation2018). Information equality is an important right for them. China’s Treaty implementation could eliminate the information inequality and discrimination they face; it guarantees visually impaired people basic access to education and the creation of equal opportunities for them to discover their true potential and aims to correct society’s negative attitudes towards them by socially disseminating education about this issue. The China Disabled Persons Federation and local organizations should take the initiative to actively cooperate with the legislature and coordinate with relevant departments while guiding local cultural service institutions for visually impaired people to make corresponding preparations. How to accelerate necessary amendments to domestic laws using a human rights-based perspective, deserves further study.
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No potential conflict of interest was reported by the authors.
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References
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