A model copyright exemption to serve the visually impaired: an alternative to the treaty proposals before WIPO.

• Author: Hely, Patrick

ABSTRACT

Copyright law presents visually impaired persons with serious barriers to access of the written word. A recent international effort seeks to remove these barriers to access, in limited instances, by allowing the creation of accessible formats of copyrighted works. While bodies like the World Blind Union--through several South American states--have presented draft treaties to the World Intellectual Property Organization (WIPO), to date the interested parties have not found a mutually agreeable solution. This Note surveys international intellectual property law as it relates to the problem, draws a comparison to the humanitarian concerns entangled with international patent law, and tracks the progress of the efforts toward resolution. The Note then discusses the shortcomings of the currently proposed solutions. Finally, this Note proposes a market-based solution to providing accessible works, which conforms to the requirements of the Berne Convention and TRIPS Accord's "three-step test" and avoids the onerous process of finding an acceptable treaty as well as the static resolution such a treaty would provide.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. Foundations of International Copyright B. Interface with International Human Rights and Lessons from International Patent Law C. The Economics of Copyright in a Digital World D. A Summary of Current Exceptions for the Visually Impaired E. The Proposed Solutions i. The First Proposed Treaty ii. Proposals at the Twentieth Session of the Standing Committee iii. The TIGAR Solution III. WHY THE PROPOSED TREATIES ARE INADEQUATE AND UNNECESSARY MEASURES A. The Redundancy of the Treaties B. The Shortcomings of the Proposed Treaties C. Technology Specific Shortfalls of the Treaties i. The Lack of Adequate Ability to Circumvent Technological Protections ii. Patent-Related Barriers to Access iii. The Lack of a Standardized File Format for Accessible Digital Works Will Burden the Visually Impaired IV. A MODEL LAW: THE ALTERNATIVE WIPO SHOULD PURSUE A. Important General Provisions B. A Framework for an Effective Model Law C. The Framework in International Law V. CONCLUSION In a word, literature is my Utopia. Here I am not disenfranchised. No barrier of the senses shuts me out from the sweet, gracious discourses of my book friends. They talk to me without embarrassment or awkwardness.--Helen Keller (1)

1. INTRODUCTION

   In 2002, approximately 161 million people in the world lived with a visual impairment. (2) Thirty-seven million of those people suffered from blindness with the remainder suffering from low vision. (3) Visual impairment also affects marginalized populations at a greater rate: women, the elderly (over the age of fifty), and those living in developing nations experience visual impairment at significantly greater rates than men, younger individuals, and those living in the developed world. (4) The total economic cost of visual impairment, measured as lost productivity, in the year 2000 amounted to an estimated $19 billion attributable to blindness and $42 billion attributable to all visual impairment. (5) In the United States alone, visual impairment accounts for an annual loss of more than 209,000 quality-adjusted life years. (6)

   The visually impaired must negotiate substantial barriers in accessing the written word. (7) Despite the availability of a variety of accessible media--ranging from Braille and large print editions to simple and complex technological solutions (e.g., magnifiers, computer software--hardware combinations)--the cost of these technologies creates a large burden borne by the visually impaired. (8) Even texts within the public domain, when rendered in an accessible format, become expensive: an English-Braille version of the Roman Catholic Bible can cost more than $700; (9) Shakespeare's Hamlet costs approximately four times as much in Braille; (10) and in Indonesia, printing a Braille version of the Qur'an costs 1.2 million rupiah (11) (approximately $134 (12) or 95 [euro] (13)) while the per capita GDP is estimated at approximately 35 million rupiah (14) (less than thirty times the cost of the Qur'an). The World Intellectual Property Organization (WIPO) estimates that the visually impaired can access no more than 5 percent of published books currently available because of format barriers. (15)

   At the same time, technology continues to improve access to the written word for those visually impaired people who can afford it. Both Microsoft's and Apple's latest operating systems support increased access for the visually impaired, (16) Public libraries have made digital audio book downloads available to the blind as a free lending service. (17) E-book readers like Amazon's Kindle line and Sony's Reader line allow readers to adjust the size of the font. (18) The Kindle line also has the ability to convert text to speech. (19) However, visually impaired users report difficulty in activating the function. (20) This drawback has stopped at least two American universities from rolling the device out to their students on a large scale. (21) A third school, Arizona State University, found itself in court because of participation in a Kindle pilot program. (22)

   In large part, technology drives the increases in access to the written word for the visually impaired because, in the digital world, the price of information trends towards zero. (23) Unlike tangible media used to deliver information, which has a marginal cost linked to the scarcity of its production components, the information itself has a reproduction cost of effectively zero. (24) Parties recognized this idea and the odd cost-price dichotomy of information in the earliest days of the information economy, well before the rise of the Internet. (25) In 1984, Steven Levy reported on the "hacker's ethic," which included among its maxims that "[a]ll information should be free." (26) Later that year, Stewart Brand reinterpreted this maxim as "information wants to be expensive, because it's so valuable" while "information wants to be free, because the cost" of distribution constantly approaches zero. (27)

   While technology may solve access problems for some, 90 percent of visually impaired people "live in countries of low or moderate incomes." (28) The developing world does not have the same access to technology as the developed world, and that access improved slightly, at best, between 1997 and 2007. (29) Approximately 70 percent of all people living in the United States reported having used the Internet by 2008. (30) In India, 7 percent reported the same use; in Mali, 0.7 percent. (31) Internet access in the developing world is more expensive in income-relative and absolute terms. (32) Residents of the developing world's urban cities spend an average of 14 percent of their daily income on one hour of Internet access. (33) That ratio is halved in the developed world. (34) Moreover, in 2004, 18.4 percent of the world's population lived on less than $1 a day and 47.7 percent lived on less than $2 a day. (35) The visually impaired also encounter greater difficulty finding and maintaining employment. (36) According to the World Bank, disabled people in general constitute 15-20 percent of the poor living in developing countries. (37)

   The visually impaired in the developing world have even fewer accessible-format works available. (38) For example, only approximately 0.5 percent of books published in India are converted to an accessible format. (39) Charities in Chile, Columbia, Mexico, Nicaragua, and Uruguay have produced a total of 8,517 accessible Spanish-language works. (40) By contrast, Spain has 102,000 accessible works, nearly twelve times as many. (41)

   To a large extent, the solution to overall access to written works reflects policy decisions by individual states within the global community, charitable organizations, and individual rights holders. While numerous open questions exist with regard to those decisions and the international law affecting them, those problems lay beyond the scope of the present analysis. This Note summarizes the aspects of international copyright that present specific hurdles to access for the visually impaired and the economic and philosophical principals undergirding those legal restrictions. This Note next analyzes current legal systems' provisions for overcoming these obstacles and the international proposals to expand such solutions. Finally, the Note addresses the specific implications these solutions have on access for the visually impaired. Ultimately the Note advances a market-based solution that effectively balances the rights holders' need for protection of their intellectual property with the visually impaired's need for access. The solution advocates a system that allows visually impaired people to access the written word at approximately the same rate as similarly situated, sighted individuals. As a final limitation, this Note addresses copyright only within the realm of the written word. The visually impaired have access limitations to a number of copyrighted materials, but the question of how to accommodate access in those other media will remain open.

2. BACKGROUND

   1. Foundations of International Copyright

      Individual nations justify the protection of copyright on a number of grounds, including natural law, encouragement of creativity, social utility, and just rewards. (42) The major differences among domestic copyright laws stem from differences in source and the underpinning rationale in common law countries and civil law countries. (43) For example, in the United States, copyright law traces its roots to a constitutional source in the Copyright Clause, (44) which in turn draws from England's Statute of Anne. (45) On the other hand, in France, the copyright law's (droit d'auteur, literally "authors' rights") authority stems from statute. (46) The very language of the Copyright Clause indicates that the Framers empowered Congress...