Post by Laurence Diver, CREATe Research Assistant, University of Edinburgh
Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (“the Copyright Directive”) has provided European member states with “the option of providing for certain exceptions or limitations for cases such as […] for use by people with disabilities…” (Recital 34). Making copyright exceptions for disabilities merely optional raises the possibility that member states will opt not to implement them, thus potentially creating free movement barriers for EU citizens with disabilities. More research is required to assess what the variances in the exceptions enacted by member states are and whether these in fact prejudice the rights and interests of EU citizens with disabilities.
In 2009 Commissioner Viviane Reding proposed a “European Disability Act”, which would have mandated the implementation of uniform accessibility rules across member states. Applying the normative rationale behind that proposal to copyright law would arguably have compelled the adoption of uniform exceptions for the disabled to ensure their equal participation at cultural life and economic activity. Indeed, there is a clear legal basis for EU legislative action in this area, pursuant to Article 19 of the Treaty on the Functioning of the European Union which permits the Council to “…take appropriate action to combat discrimination based on […] disability […]”. This provision was later bolstered by the EU Directives on the prohibition of discrimination .
We agree with Commissioner Reding’s view that “[w]e cannot achieve the Single Market by leaving aside certain parts of our population” and also share her concern that while “15% of our population is disabled and our rules on accessibility are still fragmented” . Further study is required to ascertain the extent to which member states’ diverging implementation of copyright exceptions contributes to the problem.
Reding’s speech took place at the launch of the European Digital Media Association’s White Paper on the development of new media services. Although the Marrakesh Treaty to which it refers is welcome in principle, the regular focus on it entrenches yet another legal fragmentation in this area — this time between different forms of disability. The Marrakesh Treaty focuses exclusively on visual impairment. This partly reflects the fact that the visually impaired have experienced the most obvious access barriers caused by copyright and the absence or limited nature of its exceptions. But the visually impaired also enjoy the support of effective and powerful advocacy groups such as the European and World Blind Unions. In light of this great care must be taken to ensure that other disabilities are not ignored.
Although visual impairments are perhaps the most obvious disability affected by copyright law, there are others for whom the legal barriers can constitute a significant reduction in the right of access. For citizens with hearing impairment, for example, the timely provision of closed caption services is of great importance. In this field there is some evidence that member states differ in their treatment of third-party providers who supply assistive captions before the right holder has issued their own, “official” version (which can sometimes happen a significant period after initial publication or release, if at all). Another example that came up during our research were legal barriers to the modification of audio and music files for tinnitus sufferers, where legal uncertainty creates barriers to innovation in medical products aimed at assisting those with such disabilities.
A particularly large group which has so far received hardly any consideration in the debate are citizens with mental health difficulties or learning disabilities. For the latter group in particular, the focus on the format of a copyright work is less relevant than the provision of “easy read” versions that use simplified language (also relevant for some deaf citizens), modified sentence structure or symbol support. Memory impairment is another significant impairment affecting a large proportion of the population — something which will increase with an ageing European population. For them, search facilities that supplant their own memory can be important, as well as rights to create recordings of live events and performances which they attend. Some assistive technologies such as Microsoft’s Sensecam may inadvertently violate copyright when used this way.
More empirical research is needed to ascertain into the impact of copyright on those with various disabilities. Conceptually however, and from a normative perspective, the creation of harmonised disability- and technology-agnostic copyright exceptions seems strongly desirable. 2000/43/EC on implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; 2000/78/EC establishing a general framework for equal treatment in employment and occupation  Speech 09/429, 1 October 2009. Available here (last accessed 14 March 2014).