LI Chen*

 

Abstract: The Marrakesh Treaty is, in essence, a human rights treaty. The interpretation and implementation of the treaty cannot be separate from the view on the persons with disabilities from the perspective of human rights. Based on this view, the interpretation of the treaty should reflect its value of promoting equality, instead of granting privileges to the persons with disabilities. During its implementation, it should be forbidden to aggravate the social alienation of the persons with disabilities by making excessive stipulations. Taking the implementation of the treaty as an opportunity, promoting the transformation of the view on the persons with disabilities from the individual model to the human rights model and facilitating the concept of “building the intangible accessible environment” can maximize the significance of the treaty.

 

Keywords: Marrakesh Treaty · human rights model · the person with disabilities · copyright · fair use

 

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired¹ or Otherwise Print Disabled (hereinafter referred to as the Marrakesh Treaty) entered into force in China on May 5, 2022. The Treaty puts a focus on creating appropriate limitations and exceptions to copyright law that will facilitate access to published works for persons with print disabilities. To this end, in preparing legislation for the implementation of treaty, China amended the clause on copyright limitation. The clause on copyright limitation, namely, “transliteration of a published work into braille and publication of the work so transliterated” was amended to “providing published works in an accessible format perceivable for persons with print disabilities” in 2020. Accordingly, most discussions on the Marrakesh Treaty in Chinese legal circles are led by intellectual property scholars from the perspective of copyright law, mainly using a comparative method to discuss which model is appropriate for China to learn from when formulating detailed rules for implementation.

 

The necessity for these studies is beyond doubt. Article 24(12) of the Copyright Law of the People’s Republic of China (PRC) is a provision of the fundamental principle. For this provision to be practical, it is necessary to explicitly address some specific issues, including defining beneficiary persons and authorized entities, the scope of accessible works, the ways to grant access, and whether it should be on the premise that accessible format copies cannot be obtained commercially for the beneficiaries. But it goes without saying that there remain certain deficiencies in the existing discussions limited to the perspective of copyright law.

 

The Marrakesh Treaty is a copyright treaty and a human rights treaty. The Marrakesh Treaty puts a focus on limiting copyright (a type of intellectual property right) rather than protecting it as a normal intellectual property protection treaty, because this treaty, at its core, is about protecting a human being’s basic right to equally participate in knowledge sharing, using copyright limitation as an approach to realizing this purpose. Therefore, human rights theory provides an indispensable conceptual framework for interpreting and implementing the treaty. However, due to the professional division of labor, intellectual property scholars do not pay much attention to the development of human rights theory, especially the theory of disability directly related to the treaty. They tend to interpret the Marrakesh Treaty from the traditional perspective of protecting the disabled, and limit the meaning of the treaty to offering charity and assistance to the weak. Specifically, some believe it is humanitarian “to treat the visually impaired better than the normally sighted in some respects,”² and some even hold that this treaty grants “special entitlements” to persons with disabilities.³ While these interpretations sound somewhat reasonable, they do not fully reveal the value of the Marrakesh Treaty in promoting human rights. The Marrakesh Treaty is of great significance, not about creating special entitlements, but about achieving equality. As stated in its Preamble, the treaty has been adopted because state parties have become “aware of the barriers of persons with visual impairments or with other print disabilities to access published works in achieving equal opportunities in society, and the need to both expand the number of works in accessible formats and to improve the circulation of such works”. Adopting a certain model of disability, it will certainly affect how the Marrakesh Treaty will be implemented, including the implementation plan and the social effects. If implementation rules are constructed excessively dependent on the concept of “special protection,” it will greatly compromise the credibility of the Marrakesh Treaty in promoting social equality and may limit the access to published works to the non-commercial channel, namely, completely isolated from the market. In so doing, the needs of certain groups of readers would simply become an issue of social assistance rather than being equality in consumer needs and diversity in the market, resulting in aggravated social segregation of persons with visual impairments.

 

As the reflection and review of a member of the intellectual property academic community, this paper aims to remind the community that the study of the Marrakesh Treaty should not be limited to the discussions of technicalities of copyright law, but should pay more attention to new developments in theories of disability, to facilitate the use of the social equality concept in guiding the propaganda and implementation of the Marrakesh Treaty.

 

 

In general, there are three major models developed in disability studies: The individual model, the social model, and the human rights model.⁴

 

Before the 1970s, disability was regarded as an impairment that needed to be cured or fixed, which shaped the “individual model” of disability. Since medical measures are used to fix or cure impairment, the individual model is also called the “medical model.” If the disabled cannot be cured and return to their normal health status, they will become the objects of welfare and charity. “Therefore, it is natural for a system constructed to solve the problem of disability based on the individual model to be dominated by medical measures, with charity and welfare as alternative backup measures.”⁵ In 1976, the Britain-based Union of the Physically Impaired Against Segregation (UPIAS) published the Fundamental Principles of Disability. These principles differentiated between impairment and disability while redefining disability: “In our view, it is the society which disables physically impaired people. Disability is something imposed on top of our impairments. By the way, we are unnecessarily isolated and excluded from full participation in society.” This kind of definition falls into the “social model” of disability. The social model does not view personal impairment as the cause of the problem of disability; rather, it reflects on and criticizes how society disables the physically impaired. Impairment is a physical or mental status, while disability results from the interaction between impairment and the environment.⁶ The introduction of the social model is a great leap forward for disability studies. Theoretically, the human rights model, in its essence, extends and improves upon the social model. In a broader sense, the developments in disability studies can consist of just two models: The individual model and the social model. As stated by a scholar: “Disability studies would not exist without the social model of disability.”⁷

 

The human rights model began to take shape in the 1980s after the United Nations recognized disability as a human rights issue.⁸ The social model is an improvement over the individual model. However, it still has evident deficiencies, considering the dichotomy of impairment and disability and the tendency within the model to ignore personal impairment. “The social model of disability has been criticized for neglecting the experience of impairment and pain for persons with disabilities and how it affects their knowledge and their identity.”⁹ The human rights model is premised on recognizing personal impairment and delivers a clear argument: Impairment does not hinder human rights capacity, and human rights do not require a certain health status or a condition of functioning.¹⁰ Evidently, the human rights model encompasses the core values of the social model and recognizes that disability results from the interaction between personal impairment and the social environment. Where it goes beyond the social model: It adopts a more proactive approach toward personal impairment, recognizes impairment does not hinder human rights capacity, and values impairment as part of human diversity.¹¹

 

The Convention on the Rights of Persons with Disabilities (CRPD) is an exemplary instrument that endorses the human rights model of disability, while its definitions of “disability” and “persons with disabilities” obviously draw upon the social model: “Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others,” and “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” Both definitions are expressed by taking into account the interaction between the impairment of an individual and the environmental barriers. In the Preamble of the CRPD, it states: “Recognizing further the diversity of persons with disabilities”. Article 3 (General principles) (a) provides that: “Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons.” Article 3(d) states: “Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity.” According to Theresia Degener, who was involved in concluding the CRPD as a member of the CRPD Committee: “The diversity principle of Article 3 of the CRPD is a valuable contribution to human rights theory in that it clarifies that impairment is not to be regarded as a deficit or as a factor that can be detrimental to human dignity. Thus, the CRPD is based on the premise that disability is a social construct, and values impairment as part of human diversity and human dignity. In this regard, I think the human rights model goes beyond the social model of disability.”¹²

 

Acknowledging the diversity of life and the equality of people is the most important starting point of the human rights model of disability. Although the human rights model took shape later than the social model, it, in return, provides a more convincing theoretical basis for the social model in terms of ethics: Why is disability attributed to society? Impairment is equally recognized as a life factor, and the refusal of the external environment to acknowledge it creates the problem of disability. “The human rights model... locates the main ‘problem’ outside the person and in society.”¹³

 

Other than the above three models, many models of disability have been developed in disability studies, of which the “model of universalism” in particular is worth mentioning. This model assumes that disability is a universal experience for all humans, except for the varying experiences of disability. Every individual is at risk of illness or impairment throughout their lives, hence the risk of becoming disabled, which means the needs of people with disabilities are universal to all people. In light of such “universalism of disability” and “universal needs,” this model holds that a universal barrier-free environment should be constructed.¹⁴ Some Chinese humanists have tried a philosophical point of view and recognized disability as the “limits of life,” revealing the universalism of disability in a more profound manner. Upon completion of Massage, a novel about blind masseurs, the writer Bi Feiyu said: “Now I calmly admit one thing: I am a disabled person. There are so many things in this world that I will never see, hear or smell, and so many things that I will never comprehend.”¹⁵ The writer Shi Tiesheng defined “disability” as: “Whatever you are incapable of, constitutes a limitation, and a disability, which is never a stranger to human beings.”¹⁶ These perspectives provide a humanistic basis for disability studies outside the jurisprudential scope.

 

In short, the evolution of models of disability has taken a basic path: From a special treatment perspective to an equality perspective.

 

 

The Marrakesh Treaty is associated with the CRPD. In the Preamble of the Treaty, it clearly states that: “Recalling the principles of non-discrimination, equal opportunity, accessibility, and full and effective participation and inclusion in society, proclaimed in the Universal Declaration of Human Rights (UDHR) and the Convention on the Rights of Persons with Disabilities (CRPD)”. Thus, the human rights model of disability held in the CRPD is inevitably reflected in the Marrakesh Treaty. However, the disability rights paradigm created by the CRPD is not universally understood. In reviewing state reports on the implementation of the CRPD, Professor Theresia Degener found: “Often — so it seems — states parties do not understand the profound change in disability policy and law embedded in the CRPD. The often-cited paradigm change relating to the model of disability is hard to grasp.”¹⁷ In this regard, there is also an urgent need for improvement in Chinese legislation. For example, the Law of the PRC on Protection of Disabled Persons is still under the influence of the individual model, which is reflected in the language of its articles and the definitions of relevant terms. To be more specific, it adopts the term “disabled” and defines that “a disabled person is one who suffers from loss or abnormality of a certain organ or function, psychologically or physiologically, or in anatomical structure and who has lost wholly or in part the ability to perform an activity in a normal way”. This definition still focuses on personal impairment without revealing the relationship between impairment and disability caused by society. Accordingly, while interpreting the goal of the Marrakesh Treaty, the outdated models of disability have played a role to varying extent, which is highlighted in three aspects:

 

 

In the official Chinese version of the Marrakesh Treaty issued by WIPO, the title is translated into “guanyu wei mangren, shili zhangai zhe huo qita yinshuapin yuedu zhangai zhe huode yi chuban zuopin tigong bianli de malakashi tiaoyue”, using the same term “zhangai” twice for two different terms in the original title: “visually impaired” and “print disabled”. In this sense, more accurate Chinese translation should be “mangren, shili sunshang zhe (impaired) he qita yinshuapin yuedu zhangai zhe(disabled)”. Article 3 of the Treaty uses both terms of “impairment” and “disability” while defining beneficiary persons, such as “visual impairment” and “reading disability”; however, in combination with the disability theories and the CRPD definition of disability, it is of legal significance to differentiate between “impairment” and “disability.”

 

In the treaty title, “persons who are print disabled” is used to cover “persons who are blind and visually impaired,” emphasizing that being “print disabled” is what they share in common, plus that disability results from the interaction between impairment and environment, which further highlights the goal of the treaty — to remove external barriers for the disabled to perceive the works — that is, more in line with the present model of disability.

 

Some suggest that the term “disabled” should be used while defining the beneficiary persons of the Marrakesh Treaty, and that “disabled” is better than “visually impaired” because it could cover a more comprehensive range of beneficiary persons for the treaty. Proponents of this view tend to refer to the definition of “disability” expressed in terms of impairment, for example, by only citing the first half of the CRPD definition of disability, “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments”, but omitting the second half, “which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”¹⁸ This indicates that the Chinese jurisprudential community has not yet fully realized the significance of differentiating between “impairment” and “disability”.

 

 

Some literature provides the argument: “Some disadvantaged groups (such as the disabled, etc.) and public welfare institutions (such as public libraries, etc.) have special public interests that are different from the general public, and they need special attention from the law, resulting in the necessity of granting these above-mentioned entities more special entitlements on copyright in addition to the average copyright limitations and exceptions. For example, to ensure the realization of the UDHR and CRPD goals and principles like non-discrimination, equality of opportunity, full and effective participation, and inclusion in society, it is necessary to grant persons with disabilities certain special entitlements on copyright.”¹⁹ Some also argue that the Marrakesh Treaty grants persons with reading disability “better treatment,” though not using expressions like “special entitlements or privileges.”²⁰

 

The individual model argues that the disabled who cannot be cured would need support from the charity and welfare system.²¹ The above-mentioned “special entitlements” or “better treatment” are offered to persons with reading disabilities out of goodwill, but it goes against the promotion of social equality. According to the human rights model of disability, impairment does not mean disabled persons lose their legal capacity to equal participation in social culture sharing; however, as a matter of fact, these physically impaired persons fail to enjoy such equal participation due to the barriers to accessing and perceiving the works. The Marrakesh Treaty aims to remove or reduce such barriers for the realization of equality. Thus, it is about “removing the barriers” rather than “increasing special entitlements.” All copyright laws contain limitations on rights required for personal study, research, education, and creation. For example, The Copyright Law of the PRC provides that using or quoting others’ published works for personal study, research, or appreciation, and for classroom teaching at schools or scientific research constitutes “fair use” that benefits these individuals.

 

Some disabled persons cannot perceive works in ordinary forms, so they actually cannot enjoy their inherent legal capacity to use these works. In this sense, the copyright limitations provided by the Marrakesh Treaty are merely facilitating their access to such “fair use” they are always entitled to. These hardly constitute “special entitlements”.

 

 

Some argue that one of the reasons the treaty creates copyright limitations for visually impaired persons is because of their poverty: “Visually impaired people have significantly lower economic capacity than sighted people. If the above-mentioned production and provision of accessible formats are required to be performed with the permission of the rights holder and the payment of a license fee, the cost of producing accessible formats would be prohibitive for many visually impaired persons unless supported by substantial public funding, and the number of accessible formats will also be limited.”²² However, this paper believes it is inappropriate to base the legitimacy of the Marrakesh Treaty on this perspective. Poverty relief cannot be achieved by limiting private rights. Otherwise, it is tantamount to imposing charity on the objects. Among the existing copyright limitations, there has never been a type of limitation created based on poverty relief. For example, copyright law only recognizes free performances as an exception to copyright, while performances that charge tickets for charitable donations do not constitute “fair use.” Taiwan scholar Chang Chung-Hsin analyzed the “fair use” clause for people with reading disability in the copyright law of the Taiwan region, indicating that: “The legislative purpose of this clause is not to protect the economically disadvantaged, but to guarantee free access to information, not free-of-charge access, for persons with visual or hearing disabilities.”²³ Besides, he stated that financial security and support for low-income people is a problem to be solved by the social welfare system, not a copyright law issue.²⁴ This view is worth agreeing with.

 

Of course, copyright limitations can result in objective price reduction of accessible format copies of works, but this is not the goal of the treaty. Clarifying this is significant for discussing whether copyright limitations should be based on the premise that accessible format copies cannot be obtained commercially. Overstressing the poverty relief result may affect the dynamics of accessible format provision in the market, which will go against the actual goal of the treaty.

 

The WIPO has issued the promotional material Main Provisions and Benefits of the Marrakesh Treaty (2013),²⁵ identifying four expected benefits of the treaty, which can help us clarify certain misunderstandings in the interpretation of the treaty, and comprehend the meaning of the treaty in a more accurate manner. The four benefits are: (a) Improved awareness of the challenges faced by the print-disabled community and persons with disabilities; (b) Greater access to education; (c) Enhanced social integration and cultural participation; (d) Poverty alleviation and increased contributions to the national economy. The first benefit emphasizes the awareness of the challenges faced by people with reading disability, namely, the awareness of external barriers. Thus, differentiating between impairment and disability and focusing on “removing the barriers” rather than “increasing special entitlements” are more in line with the treaty.

 

The other three benefits emphasize improvement in the lives of people with disabilities, who will achieve independence through education, social integration, and cultural participation, and career development, and make contributions to the national economy. Such emphasis reflects the human rights model of disability that regards the disabled as equal subjects rather than objects of welfare and charity. It is particularly worth mentioning that, despite WIPO’s statement of the fact that 90 percent of those who are blind and visually impaired live in low-income settings in developing countries and the factor of “poverty alleviation” in the fourth benefit, it has never stated price reduction of the works or poverty relief as the goal of the Marrakesh Treaty. Rather, WIPO addresses: “Individual professional development is highly dependent on educational attainment. By providing access to learning materials in accessible formats, implementing the Marrakesh Treaty can be a powerful tool for poverty alleviation, providing persons with print disabilities with opportunities for professional growth, allowing them to contribute to their local economies and become economically self-sufficient.” WIPO emphasizes the importance of knowledge acquisition for persons with disabilities to enhance their professional abilities and thus alleviate poverty.

 

To sum up, the Marrakesh Treaty reflects the human rights model of disability, emphasizes the equality of opportunity for persons with disabilities in acquiring knowledge, and urges the international community to pay attention to the diversity of reading needs. WIPO positions the Marrakesh Treaty as “an instrument that fosters discussion and raises awareness about the need for policies that benefit persons with disabilities.”²⁶ Thus, while interpreting the treaty, the focus should not be placed on certain practical effects of individual measures while ignoring the far-reaching implications of the treaty’s discourse. Whether in the language used or the ideas conveyed, the Marrakesh Treaty does not convey a stance of granting special entitlements to the weak or helping the poor. “A human rights approach in development means that people living in poverty are not objects of welfare and charity but rights-holders who have a say in the distribution of resources and needs assessment.”²⁷

 

 

Regarding the detailed rules for implementing the Marrakesh Treaty, Chinese scholars mostly use the comparison method to carry out their discussions, introduce foreign experiences and suggest practices applicable to China. These scholars have drawn varying conclusions due to their varying focuses on institutional regimes and the weighing of pros and cons. This paper holds that the plans for assessment, selection, and dispute coordination should be guided by the principles of the treaty, namely, those stated in the Preamble: “the principles of non-discrimination, equal opportunity, accessibility, and full and effective participation and inclusion in society.” In short, promoting equality should be the basic principle. Acknowledging human diversity and equality is the core of the human rights model of disability. What is most alarming is that, under the influence of the outdated views of disability, an implementation plan that features excessive special treatment will aggravate the marginalization of the reading needs of people with disabilities.

 

Taking this as a starting point, this paper makes recommendations on several specific issues concerning the implementation of the treaty.

 

 

The Marrakesh Treaty, the product of international negotiations and concessions, has to limit the focus of adjustment to the “barriers to access to printed works,” which is understandable because there would be no agreement achieved if dwelling on fighting for a wider scope of copyright limitations. Therefore, regarding the implementation of the treaty, it can start with the needs of the visually impaired, who experience the greatest barriers to accessing perceptible works. But the issues raised by the treaty can be identified as barriers to the accessibility of perceptible works. The Taiwan region defines the beneficiary persons as “the visually impaired, learning disabled, hearing impaired or other persons with a perceptual disability,” which is fairly accurate. The Copyright Law of the PRC adopts the term “persons with reading disabilities”, without listing “persons who are blind or visually impaired”, and defines “published works” as the object of use, leaving room for further interpretation. If the types of works permitted in the future implementation rules are broader, the term “reading” can be interpreted in a broad sense, equivalent to “perceiving the works.”

 

Meanwhile, it should be noted that the extent of copyright limitations should be reasonably determined to provide an institutional environment that allows the exchange across borders of those accessible copies produced according to such limitations. From the perspective of legislation, many countries have established copyright limitations for people with reading disabilities a long time ago. However, there is a serious shortage of available works in accessible formats. The important innovation of the Marrakesh Treaty is to facilitate the cross-border exchange of accessible format copies. In doing so, it can avoid repeated production of accessible versions, which is more beneficial to developing and underdeveloped countries that are relatively backward in economic and technological strength. Therefore, when China formulates detailed implementation rules in the future, it should not simply assume that a wider scope of limitations means better effects. The limitation of rights is not the goal. Only the availability of accessible format versions can truly benefit persons with print disabilities. An important prerequisite for the cross-border exchange of accessible format copies is that China can provide due protection for copyright owners of overseas works and eliminate the concerns of relevant entities on cross-border exchanges. In the section of limitation of rights of the Copyright Law of China, it limits the removal of reading barriers to the scope of “fair use”; and whether to include all barriers to accessing perceptual works in the scope of “fair use” in the future needs to be considered. This paper argues that, in the future, it is possible to carry out the hierarchical design based on the extent of barriers and types of works, incorporate certain methods of use into legal licenses or compulsory collective management, and retain the copyright owners’ right to remuneration.

 

 

As defined in the Marrakesh Treaty: “‘authorized entity’ means an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading, or information access to beneficiary persons on a non-profit basis. It also includes a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations.”

 

There is no doubt that the identification and construction of authorized entities is an important guarantee for the implementation of the treaty. It is worth noting, however, that authorized entities are primarily responsible for the production and provision of accessible versions of works. The premise of producing accessible format copies is accessing the works, especially the versions that can be easily converted into accessible formats. Meanwhile, the provision is premised on accessing the accessible versions of works. This relies on the support of other institutions for the publication, registration, and deposit storage of works, such as the cooperation with publishing houses, libraries, copyright registration authorities, copyright collective management organizations, and universities.

 

A considerable proportion of the visually impaired do not understand Braille, and the application of technologies like text-to-speech and Braille displays, perceptible digital versions are cheaper to produce and easier to promote than traditional Braille and audiobooks. The experience in the Taiwan region shows that “how to collect electronic versions to speed up the conversion of accessible versions has always been the key to the problem.” Therefore, the system construction to remove the barriers for people with reading disabilities involves not only copyright law, but also library law, academic degree law, and publication law.²⁸ China has established regulations governing the mandatory deposit of publications. For example, Article 26 of the Public Library Law of the PRC stipulates: “A publishing unit shall deposit official publications to the National Library and the local public libraries at the provincial level in accordance with relevant state regulations.” Article 23 of the Provisional Measures for the Implementation of the Regulations of the PRC on Academic Degrees provides that: “A copy of the successfully defended dissertation for master’s degree or that doctor’s degree shall be deposited to the library of the degree-conferring entity; besides, a copy of the successfully defended dissertation for doctor’s degree shall also be deposited to the National Library of China and a special library.” Article 28 of the Draft Law of the PRC on Academic Degrees (Draft for Comment) provides that: “The degree-conferring entity shall preserve the degree applicants’ application materials, dissertation and other archival materials. Doctoral dissertations shall be deposited to the National Library of China at the same time. Confidential dissertations shall be handled in accordance with the relevant state secrets regulations.” In the future, it may be considered to incorporate accessible designs into the deposit system by requiring the submitting institutions to submit an electronic version of the work (except under special circumstances) for the authorized entities to produce accessible format copies. This requirement does not impose an additional burden on the obligors of deposit, given that electronic versions are widely used in publishing and writing thesis papers. Of course, there should also be exceptions provided to ensure that the submission of electronic versions will not cause unfair damage to the copyright and other supporting designs.

 

Copyright registration authorities and copyright collective management organizations are entities that hold a large amount of information on the works. If accessible designs are incorporated in the information registration of works, for example, by adding items such as “whether the work has been converted to an accessible format version,” “whether the rights holder is willing to authorize the production of accessible format versions for a fee or for free,”and “whether the rights holder is willing to provide an accessible format version free of charge,” it will greatly facilitate the access to works for authorized entities and beneficiary persons. If the future law stipulates that certain copyright limitations should be based on the premise that accessible format copies “cannot be obtained commercially,” it will also facilitate relevant entities to understand whether they meet the conditions of “fair use.”

 

In addition to the operational advantages, the above design has a more significant meaning: This is an “integrated” design; that is, the accessible design is integrated into all aspects of cultural preservation and recording, which improves the construction of a culturally accessible environment and cultivates social awareness of equality. This allows the community to realize that diverse needs should be taken into account in cultural preservation and recording, which is more conducive to the social integration of persons with disabilities than providing special treatments for them. In Japan’s Copyright Law (1970), only the libraries for the blind were allowed to make fair use of works to meet the needs of the blind. This Japanese Association for the Protection of Reading Rights for the Visually Impaired raised objections to this at the time, arguing that this provision was charity, while blind people should have the right to use the library on an equal basis with sighted people.²⁹ At present, Japan has already included public libraries in the scope of authorized entities. This may serve as a reference.

 

 

Article 4(4) of the Marrakesh Treaty provides that: “A Contracting Party may confine limitations or exceptions under this Article to works which, in the particular accessible format, cannot be obtained commercially under reasonable terms for beneficiary persons in that market.” There are different views in the Chinese academic community on whether China should impose this condition. Proponents argue that: If not imposing the premise that “accessible format copies cannot be obtained commercially,” “it will hinder orderly development of the accessible publishing market in China.”30 However, opponents believe that “China’s accessible publishing industry requires particular support of the copyright law in removing the barriers, increasing the transfer of copyright and delivering legitimacy.”³¹

 

The answer to this issue relies on more detailed empirical investigation and analysis, or it can also be dealt with in stages. This paper tries to highlight one particular perspective: In light of promoting equality, accessible format versions should be made available through market (commercial) channels as far as feasibly possible. In fact, as stated in the Preamble of the Marrakesh Treaty, many Member States have established limitations and exceptions in their national copyright laws for persons with print disabilities. Yet, there is a continuing shortage of available copies of works in accessible formats. This problem is not supposed to be fully solved with copyright limitations. The root cause is the lack of market dynamics due to the small demand for accessible format versions. The main purpose of the treaty is not to limit copyright, but to address market failures as much as possible. WIPO is explicit about the benefits of ratifying the treaty: “The Marrakesh Treaty has one shared goal and benefit: To increase access to books, magazines and other printed materials for the world’s population of persons with print disabilities.”³² If the treaty effectively prompts market players to pay attention to the diverse needs for works and motivates them to actively develop commercial versions of accessible format works in order to avoid copyright limitations, then the main purpose of the treaty is achieved.

 

The function of the intellectual property right limitation system is not necessarily reflected in the actual occurrence of results from such limitations, and it also includes guiding relevant entities to take legally encouraged actions to avoid such limitations. One typical example is the “compulsory license based on unjustified failure to utilize,” which is an “implicit” rule as the norm. China has not issued a single compulsory license, but this does not mean the compulsory license system has not played a role. The main function of this system is precisely to urge the right holders not to go into a situation where a compulsory license is required. With the development of digital technology and artificial intelligence technology, compared with traditional Braille publishing, the new accessible publishing will feature great changes in terms of production cost and audience range, making it possible to attract market investment. It is particularly worth noting that the impairment or loss of perceptual functions such as vision and hearing is not necessarily based on congenital causes or acquired diseases, but is also a natural result of aging. In this sense, the needs for perceptible works in accessible formats are universal, resulting in optimistic market prospects. The above-mentioned argument that “China’s accessible publishing industry requires particular support of the copyright law in removing the barriers” is paradoxical: As an industry, the accessible publishing industry may also be harmed if the premise that “accessible format copies cannot be obtained commercially” is removed.³³ If the law can guide market entities to actively develop works in accessible formats in order to avoid copyright limitations, it will make it easier for society to embrace the diverse needs for works. Besides, products developed by specialized commercial entities are usually superior to those offered by non-profit authorized entities in terms of technical quality and user experience. If completely relying on public welfare channels, it will only meet the basic needs for works, rather than the more differentiated needs of people with disabilities for higher-quality products. Besides, these channels fall into the category of special supply channels, which hinders social equality and participation of people with disabilities.

 

Of course, if copyright limitations are based on the premise that “accessible format copies cannot be obtained commercially,” the duty of care of beneficiary persons and authorized entities should be reduced. This design can be connected with the above-mentioned accessible designs in the registration and deposit of works. A platform that aggregates information on published works in accessible formats may be put on the agenda. A search on such a platform can be considered to have fulfilled the duty of care regarding the premise that “accessible format copies cannot be obtained commercially,” which will motivate relevant stakeholders to declare the information of accessible format works they develop actively.

 

 

As defined in China’s Regulations on Barrier-free Environment Construction, “the construction of a barrier-free environment refers to the construction activities carried out to facilitate independent and safe access to roads, buildings, public transportation, information, and community services for people with disabilities and other members of society.” A barrier-free environment is mostly interpreted as a physically accessible environment, despite the fact that the removal of barriers to accessing information may involve the removal of accessing reading materials, which reflects the accessible environment in a cultural sense.

 

Thus, there is another possible benefit of implementing the Marrakesh Treaty: The concepts of “reading disability” and “perceptual disability” are expected to facilitate the construction of a non-physically accessible environment.

 

As mentioned above, perceptual disability is also associated with aging, and it features both the universalism of disability and the universality of needs, so this type of disability is the most easily accepted by society. It will be of great help to take the implementation of the Marrakesh Treaty as an opportunity to differentiate between “impairment” and “disability” in propaganda, promote relevant concepts with language, enrich the meaning of a “accessible environment,” and guide society to accept the human rights model of disability.

 

(Translated by CHANG Guohua)

 

* LI Chen ( 李琛 ), Professor, Law School, Renmin University of China. UNESCO Chair on Copyrights and Neighboring Rights.

 

1. This paper does not adopt the term “shili zhangai zhe (translated from ‘visually impaired’)” in the official Chinese version of the Marrakesh Treaty issued by WIPO. Besides, it is of legal significance to differentiate between “impaired” and “disabled”, which will be further explained hereunder.

 

2. Wang Qian, “On the Marrakesh Treaty and its Influence on China’s Copyright Legislation”, Law Science 10 (2013): 57. 

 

3. Yan Yonghe, “On the System Construction of Limitations and Exceptions to Copyright Law for Disabled Persons in China — Discussion with Professor Wang Qian”, Journal of South-Central University for Nationalities (Humanities and Social Sciences) 5 (2014): 101. 

 

4. Theresia Degener, “A Human Rights Model of Disability”, translated by Chen Bo, in Disability Rights Studies in China, issue 1, vol. 3, summer issue, 2016. 

 

5. Cui Fengming, “The Necessity and Value of Embedding Disability Studies in Jurisprudence”, Renmin University Law Review 2 (2020): 294. 

 

6. Theresia Degener, “A Human Rights Model of Disability”, 170.

 

7. Cui Fengming, “The Necessity and Value of Embedding Disability Studies in Jurisprudence”, 295.

 

8. Lin Jun-jie and Chang Heng-hao, “Defining Disability Studies: The Development of Disability Studies in UK and US and the Localization Process in Taiwan”, Journal of Social Sciences and Philosophy (Taiwan), issue 4, vol. 32 (2020): 660. 

 

9. Theresia Degener, “A Human Rights Model of Disability”, 177.

 

10. Ibid,. 171-172.

 

11. Theresia Degener, “A Human Rights Model of Disability”, 177.

 

12. Theresia Degener, “A Human Rights Model of Disability”, 179.

 

13. Ibid., 171.

 

14. Yang Cheng, “Institutions and Life for People with Disability: From ‘Individual Model’ to ‘Universal Model’”, Chinese Journal of Sociology 6 (2015): 106-108. 

 

15. Bi Feiyu, “The Meaning of Fear”, Spring Breeze 7 (2019): 59.

 

16. Shi Tiesheng, Essays on Sickness in Selected Works by Shi Tiesheng (Beijing: Tiandi Press, 2017), 525.

 

17. Theresia Degener, “A Human Rights Model of Disability”, 169.

 

18. Yan Yonghe, “On the System Construction of Limitations and Exceptions to Copyright Law for Disabled Persons in China — Discussion with Professor Wang Qian”, 102.

 

19. Ibid.

 

20. Wang Qian, “On the Marrakesh Treaty and its Influence on China’s Copyright Legislation”, 57.

 

21. Cui Fengming, “The Necessity and Value of Embedding Disability Studies in Jurisprudence”, 293.

 

22. Wang Qian, “On the Marrakesh Treaty and its Influence on China’s Copyright Legislation”, 51.

 

23. Chang Chung-Hsin, “The Review of Fair Use of Works for Visually and Aurally Impaired Persons”, Chungyuan Financial & Economic Law Review (Taiwan) 17 (2006): 30. 

 

24. Ibid.

 

25. WIPO, Main Provisions and Benefits of the Marrakesh Treaty (2013), full text available: https://www.ncac.

gov.cn/chinacopyright/contents/12707/356524.shtml.

 

26. Ibid.

 

27. Theresia Degener, “A Human Rights Model of Disability”, 189.

 

28. Chang Chung-Hsin, The Regulations and Practice Concerning the Fair Use or the Visually Impaired Access Works, page 25, available at http://www.copyrightnote.org/paper/pa0078.pdf. 

 

29. Handa Masao and Monya Nobuo, the 50 Sessions on Copyright Law, translated by Wei Qixue, (Beijing: Law Press · China, 1990), 267.

 

30. Lu Tian, “Study on the Copyright Limitation Concerning the Visually Impaired Persons Accessing Works”, Journal of the National Library of China 3 (2021): 29. 

 

31. Chen Hu, “An Interpretation of Copyright Fair Use Clause for the Print Disabled”, Journal of Soochow University Law Edition 1 (2022): 114.

 

32. WIPO, Main Provisions and Benefits of the Marrakesh Treaty (2013), full text available: https://www.ncac.

gov.cn/chinacopyright/contents/12707/356524.shtml.

 

33. According to a paper by an editor of China Braille Press, one of the causes of the difficulties faced by the accessible publishing is poor distribution channels. See Li Ping, “Research on the Dilemma and Development Trend of the Publication of Accessible Format Copies”, Research on Transmission Competence 16 (2020).