MOVING TOWARDS A MORE INCLUSIVE COPYRIGHT REGIME FOR THE VISUALLY IMPAIRED

• Citation: (2012) 24 SAcLJ 433
• Date: 01 December 2012
• Published date: 01 December 2012
• Author: Corinne TAN Hui Yun LLB (Hons) (National University of Singapore), LLM (University of Melbourne); Advocate and Solicitor (Singapore).

This article launches first into its discussion on the importance of taking into account users such as visually impaired persons (“VIPs”) in copyright laws, and also the factors that have made it all the more pertinent to resolve this issue at the international and domestic levels. It then discusses the stance taken to copyright exceptions for VIPs under international conventions and treaties, and evaluates the proposals recently put forth at the international level for compliance with obligations imposed under existing main international intellectual property instruments. Thereafter, this article proceeds with an overview of Singapore's position and attempts to delineate the current copyright exceptions available to benefit VIPs in Singapore. It identifies the reasons for the failure of VIPs and their intermediaries in utilising existing copyright exceptions in the Singapore landscape. This article concludes by proposing that a multi-pronged approach, at a legislative as well as at a practical level, is required to improve the position of VIPs and their intermediaries under copyright laws.

I. Introduction

1 Copyright systems allow certain exceptions and limitations to the rights of the copyright owners, that is, cases in which works claiming protection under copyright law can be used without the permission of the right-holders. Specific user groups have been identified to be the beneficiaries of such exceptions and limitations. The flexibility granted under the international regime allows national legislators to define the scope of exceptions which is necessary in light of the differing circumstances in each country. However, this flexibility is also responsible for the ambiguity of national copyright exceptions and limitations granted to the specified beneficiaries, and in many instances, such copyright exceptions and limitations can be ineffectual in respect of the purposes for which they were incorporated into copyright laws in the very first place! The backdrop of rapid technological advances and the global widespread use of the internet have pushed this question of redefining the “rights” of these specific beneficiaries against the monopoly held by right-holders into the forefront. Not surprisingly, the issue of copyright exceptions and limitations is being considered in the agenda of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) and in recent years, the SCCR's debate has been focused mainly on three groups of beneficiaries, namely, educational institutions, libraries and archives, and disabled persons.1 On 1 November 2010, the WIPO stakeholders' platform set up to address the concerns and needs of copyright owners and VIPs approved the launch of a project to facilitate the access of the visually impaired to published works.2 This project is the trusted intermediary global accessible resources project (“TIGAR”), under which publishers agree to collaborate to make their titles more easily available to trusted intermediaries (“TIs”), who will in turn create accessible formats for sharing amongst themselves and with specialised libraries catering to the visually impaired.3 A proposal on an international instrument on exceptions and limitations for VIPs had also been tabled for consideration at the SCCR's 22nd session in June 2011 by a coalition of developed and developing countries, including Australia and the US.4

2 This article is particularly concerned with the exceptions granted to VIPs. Approximately 285 million of VIPs worldwide can stand to benefit from a copyright regime which takes into account their interests.5 In Singapore, based on the Annual Report of the Singapore Association of the Visually Handicapped (“SAVH”) for the financial years 2010 to 2011, there was an increase in the number of SAVH's registered clients, from 2,284 clients for the financial years of 2001 to 2002, to 3,235 clients as of 31 March 2011.6 Registered clients of SAVH have to be certified by an ophthalmologist as blind or as having

low vision.7 The Annual Report indicates that 34.8% of SAVH's clients are from the age group of 71 years and above. The largest percentage of SAVH's clients belongs to this age group, as compared to other age groups. Furthermore, 61.8% of SAVH's clients are aged 51 and above.8 These figures, read together, suggest a possible co-relation between old age and low vision in Singapore. With reference to a report prepared in 2007 by the Ministerial Committee on Ageing, it has been estimated that the number of Singaporean residents aged 65 years or older will multiply threefold by 2030, and that one out of every 5 residents will be aged 65 years or older at that time, up from one out of 12 residents in 2007.9 In fact, Singapore has been projected to be the fourth oldest country in the world by the very same report.10 As the number of elderly grows dramatically in the near future, the corollary is that there may be an increase in the number of VIPs in Singapore. This situation is likely to find its parallels in other developed countries, even though the majority of VIPs are currently resident in developing countries. Therefore, efforts to accommodate the interests of VIPs within copyright systems will have to be undertaken on a global scale to counter what appears to be an emerging international crisis. As accessibility is known to be a key enabler for people to have more opportunities to participate socially, culturally and economically, providing VIPs with adequate access to information is a step towards their better integration into society.

3 Part II of this article will first highlight the factors which make it all the more pertinent to take into account VIPs as users in future copyright reforms. Part III of this article will outline the stance taken in respect of exceptions for VIPs under international conventions and treaties, and moves on to evaluate the proposals put forth at WIPO, including the most recent one endorsed by Australia, the European Union (“EU”) and its member states and the US, amongst others, for compliance with existing international copyright instruments. Part IV gives an overview and examines the existing exceptions available to VIPs and their intermediaries within Singapore's legal framework. Part V seeks to identify the reasons which explain the failures of exceptions in delivering maximum benefits to VIPs in the Singapore landscape. The practical experience of the SAVH, one of the two institutions assisting

VIPs in Singapore, is considered.11 It is to be noted that SAVH is the main organisation for VIPs in Singapore, by virtue of the size of its registered clientele. It should further be noted that this article will hence only partake in a minimal discussion of the other institution assisting VIPs, being the Singapore School for the Visually Handicapped, now known as the Lighthouse School (“School”).12 Also, while the availability of audio and braille versions of copyright material is considered in Part V's discussion, that of large-print versions will not be similarly discussed for the following reasons. Firstly, what can qualify as a large-print book for use by a VIP is unclear as there is a wide range to this definition.13 Moreover, a partially-sighted VIP who can read a large-print book can alternatively read a commercially available book in normal print with the help of a magnifier.14 Finally, Part VI concludes by stating that a hybrid of legislative and practical solutions is likely to be required to improve the access of VIPs to copyright works.

II. Factors which aggravate the problem of inadequate access by VIPs to copyright works

A. Overriding contracts

4 Without additional specific statutory provisions, generally speaking, it is possible for a potential user of a copyright work to be asked to agree to a binding contractual term with the right-holder which would deny the same user the opportunity to undertake what is

already permitted by an exception.15 It has become common in the digital age, with the use of digital rights management (“DRM”),16 to allow users to access works available online only if they agree to comply with specified contractual terms. This can affect VIPs and their intermediaries who rely on assistive technological devices to convert electronic copies into accessible formats, and who will want to enjoy the exceptions without having contractual terms imposed upon them. It is noted that with the exception of countries such as Germany, the UK and Portugal, the relationship between overriding contracts and exceptions in a majority of countries remains unclear, as it has not been expressly addressed in their copyright legislation.17 In Germany, contracts are void if they have the effect of overriding exceptions; by contrast, in the UK, right-holders are allowed to contract their way out of exceptions.18 Although this is presently the case in the UK, the view of the UK government that restrictions removed by copyright exceptions should not be re-imposed by contractual terms19 suggests that UK copyright legislation, taking into account the need to balance the rights of users against that of right-holders, will soon take a different turn.20 The danger to exceptions posed by overriding contracts gains special significance when one considers the prevalence of non-negotiable mass-market licences in the digital environment today. In the US, legislation such as the Uniform Computer Information Transactions Act has affirmed the validity of such licences,21 and US courts have upheld mass-market “shrink-wrap” licences. In one case, the particular US court went so far as to state that the overriding contract stands strong despite no copy-right having existed in the first place.22 Such an extreme decision is visibly bad news for VIPs and their intermediaries, as they can be denied access even to works which fall outside the boundaries of copyright protection. The overall thrust...