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Improving Accessibility to Copyright Works for Persons with Print Disabilities in Australia and Singapore

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Abstract

Substantial time has passed since countries including Australia and Singapore have ratified the Marrakesh Treaty. In this article, we examine the copyright legislation in both countries and identify gaps as well as areas for reform in each country, so as to improve the access of persons with print disabilities to copyright works. What intermediary organisations assisting such persons in both countries have been doing is considered, in order to assess the realities individuals with print disabilities face in trying to access copyright material. In addition to implementing legislation to accommodate persons with print disabilities, we argue that a variety of approaches including adopting available technologies and forging an inclusive culture will be needed so as to constitute an effective longer term strategy to improve accessibility for such persons.

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Notes

  1. The Sydney Morning Herald, “Stella Young’s letter to herself at 80 years old” (22 November 2014), <https://www.smh.com.au/entertainment/celebrity/stella-youngs-letter-to-herself-at-80-years-old-20141113-11llol.html>.

  2. Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired, or otherwise print disabled, signed 27 June 2013 (entered into force 30 September 2016) (Marrakesh Treaty).

  3. World Intellectual Property Organisation (WIPO), WIPO-Administered Treaties: Contracting Parties Marrakesh VIP Treaty, <https://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=843>.

  4. The Convention on the Rights of Persons with Disabilities and its Optional Protocol, A/Res/61/106 (entered into force 3 May 2008) (CRPD).

  5. CRPD, Preamble, para. (v). See also Art. 30.

  6. See also Harpur (2017a), p. 32.

  7. Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Sess., 183rd Plen. Mtg., UN Doc A/810 (10 December 1948) (UDHR).

  8. International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESR). See also Art. 3 of the ICESR.

  9. See, e.g., WIPO, WIPO Director General Hails a Success for Visually Impaired People and International Community as Marrakesh Treaty Enters into Force (30 September 2016), <https://www.wipo.int/pressroom/en/articles/2016/article_0009.html>; The International Agency for the Prevention of Blindness, Ending the Book Famine: The Marrakesh Treaty (18 May 2017), <https://www.iapb.org/news/ending-the-book-famine-the-marrakesh-treaty/>.

  10. See, e.g., International Federation of Library Associations and Institutes (IFLA), Getting Started Implementing the Marrakesh Treaty – For Persons with Print Disabilities: A Practical Guide for Librarians (March 2018), <https://www.eifl.net/system/files/resources/201808/getting_started_marrakesh_en.pdf>; Helfer, Land and Okediji (2020), pp. 332, 333.

  11. See, e.g., Sganga (2015), pp. 88, 90; Harpur and Suzor (2013), pp. 745, 749; Macharia, Otike and Bosire (2020), pp. 235, 237–240.

  12. See, e.g., Harpur and Suzor (2013), p. 749.

  13. See Sganga (2015), p. 91.

  14. See, e.g., Harpur and Suzor (2013), p. 749.

  15. See, e.g., Harpur and Suzor (2013), pp. 749–750; Harpur (2017b), p. 123.

  16. See, e.g., Sganga (2015), p. 91.

  17. See, e.g., Harpur and Suzor (2013), p. 752; Williams (2012), pp. 1035, 1039–1044.

  18. See generally Brown and Waelde (2016), p. 577; Ayoubi (2019), p. 310; Okediji (2018), p. 1; Conway (2015), p. 35.

  19. World Intellectual Property Organisation (WIPO), WIPO-Administered Treaties: Contracting Parties Marrakesh VIP Treaty, <https://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=843>.

  20. Copyright Amendment (Disability Access and Other Measures) Act 2017 (Cth) amending Copyright Act 1968 (Cth) (together, the ACA).

  21. Copyright (Amendment) Act 2014 (Singapore) amending Copyright Act (Singapore, cap 63, 2006 rev. ed.) (together, the SCA).

  22. The SCA (which came into force on 10 April 1987) was modelled on the ACA (as amended in 1980 and 1984): see Halsbury’s Laws of Singapore – Intellectual Property, Vol. 13(3) (LexisNexis, 2018 reissue) [160.001].

  23. See generally Marrakesh Treaty, Art. 4.

  24. See generally Marrakesh Treaty, Arts. 5 and 6.

  25. See generally Marrakesh Treaty, Art. 7.

  26. Marrakesh Treaty, Art. 2(c). See also Helfer, Land and Okediji (2020), p. 334; Helfer (2017), p. 25.

  27. Marrakesh Treaty, Art. 4(1)(a). See also Helfer, Land and Okediji (2020), p. 334.

  28. See, e.g., Helfer, Land and Okediji (2020), p. 42.

  29. Marrakesh Treaty, Art. 4(2)(a) and 4(2)(b). See also Helfer, Land and Okediji (2020), p. 45.

  30. See Marrakesh Treaty, Art. 4(2)(a) and 4(2)(b).

  31. This is referred to in Marrakesh Treaty, Art. 11. See Berne Convention for the Protection of Literary and Artistic Works, signed 9 September 1886 (entered into force 5 December 1886) (Berne Convention), Art. 9(2); Agreement on Trade-Related Aspects of Intellectual Property Rights, signed 15 April 1994 (entered into force 1 January 1996) (TRIPS Agreement), Art. 13; WIPO Copyright Treaty, signed 20 December 1996 (entered into force 6 March 2002) (WCT), Art. 10; WIPO Performances and Phonograms Treaty, signed 20 December (1996) (entered into force 20 May 2002) (WPPT), Art. 16.

  32. See Helfer, Land and Okediji (2020), pp. 43–44.

  33. Marrakesh Treaty, Art. 4(3).

  34. Marrakesh Treaty, Art. 4(5). See also Helfer, Land and Okediji (2020), p. 334.

  35. Marrakesh Treaty, Art. 4(4). See also Helfer, Land and Okediji (2020), p. 334.

  36. Helfer, Land and Okediji (2020), pp. 26, 48.

  37. Ibid., p. 49. See also Harpur (2017c), p. 86 (noting that no obligation was introduced requiring organisations who assist persons with print disabilities in foreign countries to determine whether accessible works were commercially available in that country before providing them with access).

  38. See, e.g., Helfer, Land and Okediji (2020), p. 49; Li and Selvadurai (2017), pp. 619, 623.

  39. See, e.g., Helfer, Land and Okediji (2020), pp. 26, 50.

  40. Helfer, Land and Okediji (2020), p. 51.

  41. Marrakesh Treaty, Art. 5(1).

  42. Marrakesh Treaty, Art. 6.

  43. See, e.g., Helfer, Land and Okediji (2020), pp. 26, 56.

  44. See, e.g., ibid.; Trimble (2016), pp. 461, 463.

  45. Marrakesh Treaty, Arts. 5(2)(b) and 6.

  46. See Harpur and Suzor (2013), p. 769.

  47. See, e.g., Harpur and Suzor (2013), pp. 773 and 777.

  48. Marrakesh Treaty, Art. 5(5).

  49. Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013).

  50. See, e.g., Trimble (2016), p. 474.

  51. See, e.g., ibid., p. 473.

  52. See ibid., p. 477. See also Tom Kabinet, C-263/18, where the Court of Justice of the European Union recently held that there is no digital exhaustion of the right of distribution under Art. 4 of 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 [2001] OJ L 167 (Information Society Directive). Instead, the provision of electronic books (e-books) falls under Art. 3(3) of the Information Society Directive, within the scope of the right of communication to the public, for which the principle of exhaustion does not apply.

  53. See, e.g., Helfer, Land and Okediji (2020), pp. 26, 63.

  54. See, e.g., Harpur and Suzor (2013), p. 769.

  55. See Harpur and Suzor (2014), pp. 1658, 1660.

  56. ACA, Sec. 113F(a), read together with Sec. 10; SCA, Sec. 54(1)–(3), read together with Sec. 7.

  57. ACA, Sec. 113F(b); SCA, Sec. 54(4)(b).

  58. SCA, Sec. 7(1), read together with Sec. 54(19).

  59. ACA, Sec. 10.

  60. Marrakesh Treaty, Art. 3. See also Helfer, Land and Okediji (2020), p. 36.

  61. See, e.g., Li and Selvadurai (2017), p. 639.

  62. See Helfer, Land and Okediji (2020), p. 337.

  63. SCA, Sec. 54(1)–(3).

  64. Marrakesh Treaty, Art. 4(1), which calls for a limitation or exception to the rights of reproduction, of distribution and of making available to the public.

  65. SCA, Sec. 54(15).

  66. See, e.g., Helfer, Land and Okediji (2020), p. 337.

  67. Ministry of Law and Intellectual Property Office of Singapore, Singapore Copyright Review Report (17 January 2019), <https://www.mlaw.gov.sg/files/news/press-releases/2019/01/Annex%20A%20-%20Copyright%20Review%20Report%2016%20Jan%202019.pdf>, para. 2.11.5.

  68. Ibid.

  69. Ibid. The requirement to pay an equitable remuneration for future copies made, distributed or made available has been removed in the proposed Copyright Bill (which is to replace the SCA and is subject to further changes), for which public consultation was sought by the Ministry of Law and the Intellectual Property Office of Singapore in February 2021, see Ministry of Law, Public Consultation on the Proposed Copyright Bill (5 February 2021), <https://www.mlaw.gov.sg/news/public-consultation-on-proposed-copyright-bill>.

  70. SCA, Sec. 7(1), does not provide an exhaustive definition of such an overseas organisation assisting persons with reading disabilities, but only to define it broadly as an institution that “has as its principal function, or one of its principal functions, the provision of works or other subject-matter to persons with reading disabilities” and “that is formed, incorporated or established outside Singapore”.

  71. SCA, Sec. 54(5), read together with the conditions under Sec. 54(6).

  72. SCA, Sec. 54(8) and 54(9).

  73. SCA, Sec. 54(8).

  74. SCA, Sec. 32.

  75. SCA, Sec. 32, read with Secs. 7(1) and 25(3).

  76. SCA, Sec. 25(4).

  77. Li and Selvadurai (2017), pp. 619 and 634.

  78. SCA, Sec. 54(11), read together with the conditions under Sec. 54(12). One condition is that the relevant person has to be satisfied after reasonable investigation that no new accessible format copy of the relevant work in the same format can be obtained within a reasonable time at an ordinary commercial price.

  79. Li and Selvadurai (2017), p. 640.

  80. ACA, Sec. 113E(2).

  81. See, e.g., Online-Convert.Com, <http://www.online-convert.com/>; Zamzar, Free online file conversion, <http://www.zamzar.com/>.

  82. Unlike Sec. 113E of the ACA, this section is not directed specifically at persons with disabilities. The practical difference between the two sections is, however, minimal.

  83. SCA, Sec. 35.

  84. ACA, Sec. 116AN–AP; SCA, Sec. 261C.

  85. See, e.g., Suzor, Harpur and Thampapillai (2008), pp. 1, 11. For example, the American Federation for the Blind articulated that such technological measures prevent access to and fair use of copyright works, are a significant abridgment of the rights of the blind and visually impaired, and further that they constitute a threat to the way in which such persons are educated, work and conduct leisure activities.

  86. Copyright Regulations 2017 (Cth), Reg. 40(2)(b), read together with ACA, Secs. 116AN(9)(c) and 132APC(9)(c).

  87. ACA, Sec. 116AO.

  88. ACA, Secs. 116AN(8) and 132APC(8).

  89. SCA, Sec. 261C(9), read together with Sec. 261C(4)–(5). It is noted that Sec. 261D(1a) of the SCA allows circumvention for the sole purpose of enabling intermediaries assisting persons with print disabilities to determine whether to acquire a copy of the copyright work, but not to make an accessible copy; Sec. 261D(1a) does not allow circumvention for the purpose of giving such persons access to copyright works. This, however, is an extremely narrow circumstance, as has been argued in Tan (2012), pp. 433, 461.

  90. SCA, Sec. 261C(1)(a).

  91. Accessible formats refer to formats in braille, audio or digital text, and are intended solely for use by readers with print disabilities, see Copyright (Excluded Works) Order 2020, order 3(c).

  92. SCA, Secs. 39C and 54(11).

  93. Marrakesh Treaty, Art. 2(c).

  94. See, e.g., Helfer, Land and Okediji (2020), pp. 27–28; Calvo (2014).

  95. ACA, Sec. 113F, refers to “an organisation assisting persons with a disability” (defined under Sec. 10 to include an educational institution as well as a non-profit organisation primarily providing assistance to persons with disabilities); SCA, Sec. 54, refers to both an institution assisting persons with reading disabilities as well as an educational institution.

  96. See, e.g., Sztobryn (2019), pp. 341, 357.

  97. Bookshare, A Benetech Initiative, <https://www.bookshare.org/cms/>.

  98. Bookshare, Benetech wins five-year award to dramatically improve accessibility of educational materials (23 July 2012), <https://www.bookshare.org/cms/about/news/press-releases/benetech-wins-five-year-award>.

  99. Benetech, Software Solutions: Bookshare, <https://benetech.org/approach/software-solutions/>.

  100. The DAISY Consortium, <https://daisy.org/>. The DAISY Consortium and its members work, among other things, in developing countries to build and improve accessible libraries.

  101. Vision Australia, <https://www.visionaustralia.org/>.

  102. This is a technical standard for digital audio books, periodicals and computerised text – it is designed to be a complete audio substitute for print material and is designed for use by people with print disabilities. See, e.g., Wikipedia, Digital Accessible Information System, <https://en.wikipedia.org/wiki/Digital_Accessible_Information_System>; and The Daisy Consortium, <https://daisy.org/info-help/>. See also Vision Australia, DAISY devices, <https://www.visionaustralia.org/information/adaptive-technology/using-technology/daisy-devices>.

  103. See, e.g., Vision Australia, Exciting times for Vision Australia (30 September 2019), <https://www.visionaustralia.org/community/news/2019-09-30/exciting-times-vision-australia-library>. It is noted that Bookshare is free for qualifying students and schools in the United States and the subscription fee is low for persons with print disabilities. See also Bookshare, What Does It Cost?, <https://www.bookshare.org/cms/Bookshare-me/what-does-it-cost>.

  104. Li and Selvadurai (2017), pp. 619, 634 and 646.

  105. SCA, Sec. 54(1)–(3), (7)–(9).

  106. SCA, Sec. 54(11).

  107. That the volume of materials accessible to persons with disabilities, including print disabilities, has not increased is a common experience in other countries, such as Poland. See, e.g., Sztobryn (2019), p. 345.

  108. See, e.g., Singapore Association of the Visually Handicapped (SAVH), Annual Report 2018–2019, <https://savh.org.sg/wp-content/uploads/2019/09/SAVH-Annual-Report-2018-2019.pdf>. The authors understand from the SAVH’s Annual Report that the SAVH relies on the production of braille materials and the purchase of audio books for readers with print disabilities.

  109. Ibid.

  110. While the SAVH website and SAVH’s Annual Report do not mention any form of cross-border collaboration, the authors understand from the SAVH that it is presently looking at some form of such collaboration in the future.

  111. ACA, Sec. 113F(b).

  112. SCA, Sec. 54(4)(b), 54(10)(d) and 54(12)(a).

  113. Ibid. There is no requirement of investigation under the ACA.

  114. Trimble (2014), pp. 768, 786.

  115. Ibid.

  116. SCA, Sec. 54(5).

  117. SCA, Sec. 54(7), 54(8) and 54(9).

  118. SCA, Sec. 54(6).

  119. See Trimble (2014), p. 788.

  120. Ibid., p. 793.

  121. Ibid.

  122. Ibid.

  123. Harpur and Suzor (2013), p. 761.

  124. Ibid., p. 763.

  125. See Tan (2012), pp. 433, 464.

  126. It is worth noting that the National Library Board can make copies of online material made available on Singapore websites in performance of its functions, see SCA, Secs. 49A and 113A.

  127. myGov, About myGov, <https://my.gov.au/mygov/content/html/about.html>.

  128. GovTech Singapore, National Digital Identity, <https://www.tech.gov.sg/scewc2019/ndi>.

  129. Sganga (2015), p. 108.

  130. Ibid.

  131. Australian Government Department of Social Services, Print Disability Services Program, <https://www.dss.gov.au/disability-and-carers/programmes-services/for-people-with-disability/print-disability-services>.

  132. See, e.g., Giblin and Weatherall (2017), pp. 315, 317.

  133. Although there is a mandatory requirement to make quotations permissible, see Berne Convention, Art. 10(1). See, e.g., Sztobryn (2019), p. 341; ibid.

  134. See, e.g., Giblin and Weatherall (2017), p. 317.

  135. Ibid., p. 318.

  136. Ibid.

  137. Goggin, Ellis and Hawkins (2019), pp. 290, 294.

  138. See generally Goggin and Newell (2007), p. 159.

  139. See The Union of Physically Impaired Against Segregation (1976). See also Smith and Smith (2020), p. 1.

  140. Smith and Smith (2020), p. 1.

  141. See, e.g., Syracuse University – Disability Cultural Centre, Language Guide, <http://sudcc.syr.edu/resources/language-guide.html>. However, it is highlighted in this guide that while people-first language is generally seen to be recommended, some disability groups dislike the application of such language to themselves as they consider their disabilities to be an integral part of themselves. Some groups also argue that using people-first language and separating the disability from the relevant person stems from the perception of the disability as something negative.

  142. See Disability Discrimination Act 1992 (Cth).

  143. There is legislation such as the Mental Capacity Act (Singapore, cap 177A, 2010 rev. ed.) that safeguards the interests of persons with intellectual disabilities, but no general disability legislation.

  144. See, e.g., Audible,

    <https://www.audible.com/ep/row/?source_code=ROWGBSH112217003I&gclid=CjwKCAiAt9z-BRBCEiwA_bWv-BQoJOBalqySabBjgOVysHKVwTTbYSzZMp-rKrU1HeX6ofUcHUjknxoCMXkQAvD_BwE>.

  145. See, e.g., Tham (2018), p. 1.

  146. Amazon, Accessibility for Kindle, <https://www.amazon.com/b?ie=UTF8&node=14100715011>.

  147. Orcam, MyEye, <https://www.orcam.com/en/myeye2/>.

  148. Mulfari (2016).

  149. World Health Organization and The World Bank, World Report on Disability (2011), <https://apps.who.int/iris/bitstream/handle/10665/70670/WHO_NMH_VIP_11.01_eng.pdf;jsessionid=FE48023E9E83F95B221B7725A766FA34?sequence=1>.

  150. Helfer, Land and Okediji (2020), p. 1.

  151. Ncube, Reid and Oriakhogba (2020), pp. 1, 14.

  152. See generally Harpur and Suzor (2013), p. 759.

  153. See the preamble to the Marrakesh Treaty.

  154. SCA, Sec. 54(5)–54(9).

  155. See, e.g., Ncube, Reid and Oriakhogba (2020), p. 5.

  156. See, e.g., ibid.

  157. Ibid.

  158. Ibid.

  159. See, e.g., Goggin, Ellis and Hawkins (2019), p. 296.

  160. See ibid.

  161. Yu (2019), pp. 467, 469.

  162. See Goggin, Ellis and Hawkins (2019), p. 297.

  163. For instance, see SCA, Sec. 54(18).

  164. See, e.g., Fitzpatrick (2014), pp. 139, 171.

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  • Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg. UN Doc A/810 (10 December 1948)

  • WIPO Copyright Treaty, signed 20 December 1996 (entered into force 6 March 2002)

  • WIPO Performances and Phonograms Treaty, signed 20 December (1996) (entered into force 20 May 2002)

  • World Intellectual Property Organisation (WIPO), WIPO-Administered Treaties: Contracting Parties Marrakesh VIP Treaty. <https://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=843>

Acts

Decisions

  • Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013)

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Authors and Affiliations

  1. LLB (Hons), LLM, PhD; Assistant Professor at Nanyang Technological University, Nanyang Business School (Business Law), Singapore, Singapore

    Corinne Tan

  2. LL.B. (Hons); National University of Singapore, Singapore, Singapore

    Perry Bing Xian Peh

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  1. Corinne Tan
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  2. Perry Bing Xian Peh
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Correspondence to Corinne Tan.

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Tan, C., Peh, P.B.X. Improving Accessibility to Copyright Works for Persons with Print Disabilities in Australia and Singapore. IIC 52, 1020–1049 (2021). https://doi.org/10.1007/s40319-021-01095-1

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