Resolving the tension between the protection of copyright and the assurance of human rights

Under copyright law, authors have the exclusive right to authorize the publication and dissemination of their works in any manner or form.Footnote ⁵ Such a right is justified as an important tool to protect authors’ material and moral interests and to encourage them to create more works.Footnote ⁶ However, copyright owners have often shown reluctance to making their works available to print-disabled persons via digital distribution channels by subjecting their works to encryption that restricts access to authorized devices and prevents people with print disabilities from using adaptive technologies.Footnote ⁷ As Mark Rose comments, copyright is a practice of securing marketable rights in texts that are created as commodities and the absence of a monetary incentive impedes the dissemination of such information.Footnote ⁸

In comparison to the proprietary focus of copyright law, human rights law recognizes the need to facilitate access to information and knowledge embodied in copyright works for persons with a print disability in order to support their well-being and development. “Access” in this context refers to the usability of a product, service, environment or facility by people with the widest range of abilities and situations. It is argued that accessibility to the physical, social, economic and cultural environment is of vital importance in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms,Footnote ⁹ and access to copyright works containing information and knowledge is seen as having a significant impact on the realization of human rights for persons with a print disability.Footnote ¹⁰ The rights relating to taking part in cultural life and enjoying the benefits of scientific progress are recognized in the International Convention on Economic, Social and Cultural Rights. The Preamble to the Convention on the Rights of Persons with Disabilities (2006) (CRPD hereafter) recognizes that access to the physical, social, economic and cultural environment enables persons with disabilities to fully enjoy human rights and fundamental freedoms. Particularly, Article 30 specifies that parties shall take all appropriate steps to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials.

As proprietary copyright laws by their very nature allow the rights holder to exclude others from utilizing intellectual resources, including those with fundamental human rights interests, there is often a substantial conflict between copyright and human rights.Footnote ¹¹ Peter Drahos, for example, finds that a paradox of property exists in the context that property rules govern the realization of human rights whereas information in various complex ways becomes implicated in the exercise of fundamental human rights.Footnote ¹² Moreover, in contemporary society, where works are commonly published in print versions or in digital forms shown on computer screens, smartphones and other digital devices, the absence of these formats being available for persons with a print disability establishes barriers for print-disabled people to realize their basic human rights to access available knowledge, information and education.Footnote ¹³

Copyright exceptions and limitations are widely perceived as helping to resolve this vexed conflict between human rights and copyright by providing a means of calibrating the rights of copyright proprietors and users.Footnote ¹⁴ Judith Sullivan's research is very valuable on this issue.Footnote ¹⁵ Sullivan collected and analysed copyright exceptions or limitations for persons with a print disability in 58 different countries and found that exceptions and limitations for the print disabled have contributed to resolving the conflicts between copyright owners and print-disabled users.Footnote ¹⁶ However, she notes that hardship exists in facilitating access to copyright works because countries have dramatically different arrangements in their domestic laws regarding whether, and to what extent, a copyright exception or limitation applies.Footnote ¹⁷ Laurence Helfer extends the discussion by specifying the minimum outcomes that human rights law requires and proposing various methods of achieving human rights ends through intellectual property means.Footnote ¹⁸ Hence, rather than an area of conflict, Helfer views intellectual property as a tool to realize human rights outcomes.Footnote ¹⁹ In particular, Farida Shaheed emphasizes the importance of the right to freely participate in cultural life and criticizes copyright laws for unnecessarily limiting cultural freedom and participation.Footnote ²⁰ She argues that states have a positive obligation to provide a robust and flexible system of copyright exceptions and limitations to honour human rights obligations.Footnote ²¹

In recognition of the importance of copyright exemptions in countering the potentially negative effect of copyright protection, a variety of international instruments have enacted sophisticated copyright exception and limitation regimes. For example, the doctrine of fair use, which allows users to exploit works protected by copyright law without authorization of the copyright owner and without paying royalties in certain circumstances, is incorporated into the Berne Convention. The Convention provides that “[i]t shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”Footnote ²² Inspired by the Berne Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS hereafter)Footnote ²³ and the World Intellectual Property Organization Copyright Treaty (WCT)Footnote ²⁴ adopted relevant clauses to regulate exceptions in a more general way, not limited to reproduction. The World Trade Organization (WTO) expert panel reaffirmed these conditions as a “three-step test,” and this test is accepted by many countries.Footnote ²⁵ The compulsory licence regime, adopted by the Berne Convention in Article II and Article III of the Appendix, further entitles users to exploit the work without the copyright owner's authorization, but users have to pay the copyright owner royalties or remuneration. Copyright exceptions or limitations apply to assure personal use,Footnote ²⁶ freedom of speechFootnote ²⁷ and access to knowledge.Footnote ²⁸

The above-mentioned intellectual property treaties, however, only permit, rather than encourage or obligate, contracting parties to provide copyright exceptions or limitations in their national laws. Individual countries have the autonomy to decide whether to adopt copyright exceptions or limitations according to their diverse cultural and economic backgrounds. Therefore, the existing mechanism provided by these instruments tends to favour intellectual property rights, without a concrete mechanism to ensure human rights. As noted by the United Nations resolution 2000/7, the TRIPS does “not adequately reflect the fundamental nature and indivisibility of all human rights.”Footnote ²⁹

The landmark achievements of the Marrakesh Treaty

To address the omission of obligatory copyright exceptions or limitations, the World Intellectual Property Organization (WIPO) made far-reaching progress by adopting the Marrakesh Treaty in June 2013. The Marrakesh Treaty creates a landmark framework for the reconciling of copyright laws and fundamental human rights by establishing an international mechanism obligating contracting parties to adopt mandatory copyright exceptions or limitations in order to facilitate access to published works for persons with a print disability. The Marrakesh Treaty entered into force in September 2016 after receiving ratifications from 20 contracting parties. To date, 82 parties have signed this treaty and 33 countries have ratified it.Footnote ³⁰

The critical obligation imposed upon the contracting parties is contained in Article 4, which requires that these parties provide a limitation or exception in their national laws to the right of reproduction, the right of distribution and the right of making available to the public, in order to empower beneficiary persons, as well as individuals and authorized entities assisting the beneficiary, to produce and communicate published works in accessible formats for the use of the beneficiary without the prior permission of copyright owners. A “beneficiary” in this treaty is referred to as a person with a print disability, including a person who is blind, has a visual impairment or a perceptual, reading or physical disability which prevents that person from reading printed works to substantially the same degree as a person without impairment or disability.Footnote ³¹ The accessible format for the beneficiary is defined to encompass a copy of a work in any manner or form that gives a beneficiary person access to the work, permitting the person to have access as feasibly and comfortably as a person without a visual impairment or other print disability. Such accessible formats include, but are not limited to, Braille, large-print, audio and digital versions of a work. Particularly, an authorized entity may, on a non-profit basis, produce copies of a work in accessible format and supply such copies exclusively to beneficiary persons by any means, including non-commercial lending or electronic communication by wire or wireless, as well as undertaking any intermediate steps to achieve those objectives pursuant to Article 4.2. An “authorized entity” is defined in Article 2 to include an institution 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, as well as a government institution or non-profit organization that provides the mentioned services to beneficiary persons as one of its primary activities or institutional obligations.

Finally, the Marrakesh Treaty provides a number of ancillary provisions to facilitate access. Article 7 requires contracting parties to provide an exception to technological protection measures so that anti-circumvention regulations do not present a barrier to the implementation of the treaty. Article 8 requires protection of the privacy of beneficiary persons while Article 11 protects the copyright owner's interests by requiring that its implementation shall comply with obligations under existing treaties, particularly with the “three-step test” under the Berne Convention, TRIPS and WCT.

The prospect of China ratifying the Marrakesh Treaty

Articles 15 and 18 of the Marrakesh Treaty provide that ratification or accession is required to become party to this treaty. The Vienna Convention on the Law of Treaties (1969), in Article 14, further provides that the consent of a state to be bound by a treaty is expressed by ratification when the treaty provides for such consent to be expressed by means of ratification.Footnote ³⁹ China is a party of the CRPD and therefore has the obligation under Article 30 to ensure that its intellectual property law regimes do not create an unreasonable or discriminatory barrier to access. However, China will not be bound by the specific arrangements of the Marrakesh Treaty before ratification because its current laws are inconsistent with the treaty. Article 7 of the Law on the Procedure of the Conclusion of Treaties (1990) (Procedure of Conclusion of Treaties hereafter) stipulates that the ratification of treaties and agreements containing stipulations inconsistent with the laws of the People's Republic of China shall be decided upon by the Standing Committee of the National People's Congress (quanguo renda changweihui 全国人大常委会).Footnote ⁴⁰ The inherent and dramatic inconsistencies between the Marrakesh Treaty and Chinese law, as will be outlined below, complicate the treaty's ratification procedure in China.

The uncertain position in China of whether international obligations or domestic laws prevail when conflicts arise contributes to the necessity of overcoming the inconsistencies between the Marrakesh Treaty and Chinese laws. As Zhang Xiaodong notes, the Standing Committee of the National People's Congress is the legislative body according to Article 58 of the Constitution of the People's Republic of China (2004 Revision), meaning that a ratified international treaty should be regarded as a legislative document in China.Footnote ⁴¹ He therefore argues that when a national law is inconsistent with a treaty that has been ratified by the Standing Committee, the international treaty should prevail.Footnote ⁴² In comparison, Wang Tieya is of the view that international treaties and national laws fall under different regimes and have different effects, and therefore one does not take precedence over the other.Footnote ⁴³ It is noted that Zhao Jianwen disagrees with Zhang Xiaodong's view and argues that international treaties prevail because a number of laws, including Article 142 of the General Principles of Civil Law (2009 Revision) (GPCL hereafter)Footnote ⁴⁴ and Article 260 of the Civil Procedure Law (2017 Revision), provide relevant provisions specifically acknowledging that international treaties prevail when inconsistent with national laws.Footnote ⁴⁵

Specific inconsistencies

While 33 countries have ratified the Marrakesh Treaty, China has not yet done so because of substantive inconsistencies between Chinese laws and the treaty. It is hence useful to examine these inconsistencies in some detail.

First, accessible format in China is extremely restricted in scope when compared with that envisaged by the Marrakesh Treaty. An “accessible format” copy is defined in the Marrakesh Treaty as a copy of a work in an alternative manner or form that permits the beneficiary person to have access to the work as feasibly and comfortably as a person without print disability.Footnote ⁴⁶ The range of accessible formats is therefore extended to include Braille, large-print and audio versions, as well as digital contents delivered to persons with a print disability through screen readers, screen magnification, refreshable Braille readers and Braille printers.Footnote ⁴⁷

In marked contrast, Chinese copyright laws recognize only Braille as an accessible format for copyright exception. The Copyright Law in Article 22(12) explicitly notes that only the transliteration of a work into Braille falls into the fair use regime. The Network Dissemination Regulation inherits the narrowness of recognized accessible formats from the Copyright Law and in Article 6(6) restricts the means of dissemination to what is “only perceivable by the blind.” In this context, large-print, audio and digital files are excluded from the exception because they are perceptible by sighted persons. As explained by Zhang Jianhua, the only version exclusively perceptible by the blind appears to be digital Braille.Footnote ⁴⁸ Blind persons can only benefit from this provision by downloading a work in digital Braille, and then by using a special device to print out the work in Braille or having the work displayed in a refreshable Braille reader.Footnote ⁴⁹

Second, Chinese copyright laws only feature exceptions that provide benefit to just a small portion of the print-disabled population. In the Marrakesh Treaty, the scope of beneficiaries is extended to include not only those with a visual disability but also persons with a reading disability who cannot understand the meaning of printed words and persons who cannot hold or look at a book because of other physical disabilities.Footnote ⁵⁰ In China, exceptions provided in both Article 22(12) of the Copyright Law and Article 6(6) of the Network Dissemination Regulation are for the use of “blind” persons. Further, given that Braille is the only possible accessible format that can be produced under copyright exceptions, the blind can only benefit from the exception if they are able to read Braille.

Third, Chinese copyright laws have not yet taken into consideration the importance of the authorized entity. Article 4 of the treaty empowers authorized entities to produce and communicate a work without the prior permission of copyright owners when certain specified conditions are met; the authorized entity is strictly defined to avoid unreasonable prejudice to the copyright owner's interests.Footnote ⁵¹ Neither the Copyright Law nor the Network Dissemination Regulation nominates any specific institution to produce and disseminate works for the print disabled. The Disability Law does require the “government” (zhengfu 政府) and “society” (shehui 社会) to take steps to assist disabled persons to access works in Braille and audio versions. But the “government” and “society” are highly abstract and general terms, and it is difficult to identify institutions that are actually accountable for such a mission.

Fourth, the Marrakesh Treaty provides a more comprehensive system than does China for copyright exceptions and limitations for private use. Article 4.2 obligates contracting parties to provide exceptions for private use by beneficiaries or someone acting on their behalf. The Copyright Law in Article 22(1) provides that anyone, including the print disabled, can use a published work for the user's own private study, research or self-entertainment, as a free-use case without authorization from the author. However, assisting other people to use a work is not accepted as fair use in this provision. Caregivers or caretakers therefore have no legal basis on which to assist the print disabled to use a copyright work without authorization from the copyright owner. The current situation in China is that caretakers and volunteers are substantially involved in helping those with a print disability to have access to reading materials by reading books to the disabled persons, making recordings of audiobooks and dictating films.Footnote ⁵² Consequently, these activities are potentially subject to infringement claims by copyright owners.

Another loophole in Chinese copyright laws concerns the lack of consideration given to technological protection measures. Such measures present a practical barrier for print-disabled persons and their assistants to a work, even when copyright exceptions and limitations are in place. The Marrakesh Treaty therefore requires its contracting parties to provide exceptions or limitations to permit the circumvention of technological measures when necessary. As mentioned above, in China the Network Dissemination Regulation in Article 12(2) provides an exception so that technological measures may be circumvented when providing a published literary work to the blind. The exception is nevertheless extremely restricted and only applies to online published literary works.

Finally, parallel imports among countries of works in accessible formats for the print disabled are accepted and encouraged by the Marrakesh Treaty, whereas Chinese copyright laws remain silent or at best ambiguous on this issue. Parallel imports help to reduce duplicative production efforts and drive down the cost of providing accessible copies.Footnote ⁵³ In China, the listed exclusive rights of copyright holders do not include the right to import or to export.Footnote ⁵⁴ In its civil law, China has a legal principle according to which the “absence of legal prohibition means freedom,” which in turn means that if there is no specific prohibition in the legislation, people can act freely in that area.Footnote ⁵⁵ It follows that to import a copyright work legally obtained from another country is not generally forbidden by the Chinese Copyright Law, except in some cases that are subject to bilateral agreements.Footnote ⁵⁶ This lack of restriction, as well as encouragement, may frustrate cross-border exchange of accessible format copies of works between China and other Marrakesh Treaty contracting countries.

Overall, the regulatory framework established by the Copyright Law, the Network Dissemination Regulation and the Disability Law does not comply with the standard of copyright exceptions or limitations to facilitate access to published works for the print disabled required by the Marrakesh Treaty, and China needs to amend its laws to facilitate ratification of the Marrakesh Treaty and to support the needs of print-disabled persons.

The current law reform discourse

As mentioned above, the State Council Legislative Affairs Office published the Draft Bill, seeking advice regarding the amendment of the Copyright Law. The Draft Bill, however, did not consider China's commitment to comply with the Marrakesh Treaty and only provides limited improvement regarding this issue. In this bill, free use for the print disabled is still restricted to “the translation of published works into Braille for publication.”Footnote ⁵⁷ It proposes to insert the three-step test to govern the application of the fair use cases prohibiting impairment of the normal exploitation of the work concerned, or unreasonable prejudice to the legitimate interests of the copyright owner. The introduction of the three-step test may make no difference because copyright exception for persons with a print disability inherently complies with the requirements of the three-step test.Footnote ⁵⁸ Another proposal is to introduce an exception in Article 71 of the Copyright Law allowing technological measures to be legally circumvented where any already published work is provided to the blind in a way that is exclusively perceptible to the blind and is not for the purpose of making profits. Commercial availability applies to this proposed exception because it requires that, under this provision, “the work cannot be obtained by the blind in ordinary ways.” This exception is further criticized as neither comprehensive nor achievable because it only applies to formats that are “exclusively perceptible to the blind.”Footnote ⁵⁹ At the time of writing, no further amendments had been made to the Draft Bill in response to these criticisms.Footnote ⁶⁰

The need to expand the scope of “beneficiaries”

The scope of “beneficiaries” is also extremely limited. The Copyright Law and the Network Dissemination Regulation recognize only blind persons as the beneficiaries of copyright exceptions. However, there are a large number of people who are not blind but who cannot read print materials; these people are excluded under the current copyright exception system. The Marrakesh Treaty recognizes an extended range of “print disabilities” and aims to provide persons who cannot read print materials owing to various disabilities with substantive equal opportunity to gain access to information and knowledge.Footnote ⁶¹ Apart from the Marrakesh Treaty, a number of countries – for example, Australia,Footnote ⁶² New Zealand,Footnote ⁶³ IcelandFootnote ⁶⁴ and CanadaFootnote ⁶⁵ – have already introduced copyright exceptions for persons with “a print disability.” The Chinese Copyright Law and the Network Dissemination Regulation should therefore extend the scope of their beneficiaries to persons with a print disability and then define types of print disabilities, as presented in the Marrakesh Treaty, to extend the beneficial effect of the exemptions and limitations to a wider segment of the population.

The need to diversify accessible formats

There is also a compelling need to diversify the accessible formats: stipulating that Braille only is an accessible format severely limits the ambit of the legislation. People need special training to “read” Braille and not everyone with a print disability has the opportunity to learn it. There are currently no official statistics regarding the percentage of blind persons who are able to read Braille in China. Wei Zhang 张伟, head of the China Braille Publishing House (Zhongguo mangwen chubanshe 中国盲文出版社), has said, when interviewed by a journalist, that in China only 10 per cent of the blind population use Braille.Footnote ⁶⁶ However, according to Deng Yawen, only 0.01 per cent of blind people have the opportunity to go to blind school to learn how to read Braille.Footnote ⁶⁷ It is clear that the majority of print-disabled persons cannot benefit if Braille is the only accessible format that can be reproduced and communicated under copyright exceptions. To make things worse, the available Braille books are far from adequate to meet the needs of the print disabled. China Braille Publishing House is the predominant publishing company providing Braille materials for the print disabled. According to the list on its website, there are in total 913 categories of books for sale in Braille.Footnote ⁶⁸ It is therefore recommended that China provide a non-exhaustive list and include an open-textured clause to encompass alternative manners or forms to give beneficiaries access to works as conveniently and comfortably as persons without a print disability. In fact, China Braille Publishing House already publishes and disseminates large-print books and audiobooks, and has launched an online library for print-disabled people which offers audiobooks, electronic books, electronic Braille materials and journals.Footnote ⁶⁹

The need for copyright laws to support the provision of assistive technology

The exception for circumvention in both the Copyright Law and the Network Dissemination Regulation should be expanded to meet the demands of the print disabled in the digital era.

First, the exception should be extended to the provision of services, technologies, devices and components for the use of the print disabled. Technological measures are designed to be difficult to remove in order to prevent unauthorized use of a copyright work. Therefore, it is often necessary, especially for persons with a print disability, to rely on special technology, devices or components, or on professional services to circumvent the technological measures. In China, the “Sunshine” (yangguang 阳光) screen reader, which is government-funded software, is sold for 800 yuan;Footnote ⁷⁰ however, the average annual income of disabled persons in 2012 was only 14,050 yuan.Footnote ⁷¹ Thus, print-disabled persons would have to spend approximately 6 per cent of their annual income to purchase this screen-reader software. A copyright exception that provides the print disabled with free or inexpensive screen-reader software and other assistive software, devices and components is necessary. Furthermore, an exception that allows computer experts or companies to provide services to assist the print disabled in these matters is also needed.

Second, China should not adopt the commercial availability test as a precondition for either the general copyright exception for the print disabled or the exception for the circumvention of technological measures. As Lea Shaver argues, even if books in accessible formats are available on the market, persons with a print disability, who are often socio-economically disadvantaged, still face difficulties accessing them.Footnote ⁷² Those with a disability in China have less income than those without a disability.Footnote ⁷³ Further, people with a disability have to spend more on medical treatment than do healthy people.Footnote ⁷⁴ Therefore, the print disabled are less likely to be able to afford the accessible format copies even when the price seems “reasonable” by normal standards.

Third, standards should be set to facilitate web accessibility. Peter Blanck notes that web content equality is an important right for disabled persons, including the full and equal enjoyment of goods and services, free communication, rights of employment, and access to online libraries and other web content.Footnote ⁷⁵ Moreover, as Paul Harpur insightfully points out, there have been a number of well-acknowledged and widely accepted standards for web accessibility, such as the Accessibility Screening Guidelines and Checklist and Web Content Accessibility Guidelines (WCAG), to ensure that websites and content on the internet are accessible to those with a print disability.Footnote ⁷⁶ Scholars in China have recommended establishing barrier-free governmental, educational and commercial websites using WCAG standards.Footnote ⁷⁷ Moreover, Zhang Mengxuan and colleagues have promoted mobile website accessibility using Mobile Web Application Best Practice and Web Accessibility Initiative Standards.Footnote ⁷⁸ Responding to public interest in this matter, the Ministry of Industry and Information is currently designing standards for providing internet services, technologies for processing multimedia information, and assistive devices and software for the blind.Footnote ⁷⁹

The need to clarify the definition of authorized entities

Finally, it is necessary to clarify the scope of “authorized entities,” as those who fall within this definition enjoy significant copyright exceptions when providing accessible format copies to the print disabled. At present, there are only two publishers producing Braille publications in China: the China Braille Publishing House and the Publishing Factory of the Shanghai School for the Blind (Shanghai shi mangtong xuexiao mangwen yinshuachang 上海市盲童学校盲文印刷厂), which publishes textbooks for use in primary and secondary education. Although widely acknowledged to be a government-funded non-profit organization, the China Braille Publishing House has not had its status as an authorized entity codified in law, and this has left it open to copyright infringement claims. For example, in the case of China Braille Publishing House v. Xu Jinjing & Hu Yanxin, the China Braille Publishing House reproduced a published printed work, authored by Xu Jinjing 许进京 and Hu Yanxin 胡彦欣, into audio form and then sold the copies without the authorization of the authors.Footnote ⁸⁰ The China Braille Publishing House claims that it is a non-profit organization and that the publication and selling of these copies were for the exclusive use of disabled persons and not for profit. The court held that the publishing house in this case failed to claim free use under Article 22(12) of the Copyright Law, because it republished a work in audio format and not in Braille. This case reveals the inefficiency of the current free-use regime. Prior to this case, the publishing house was subject to copyright infringement claims even when providing Braille copies. Although the case was finally settled between the parties, Luo Bin (罗斌) v. China Braille Publishing House challenged the legitimacy of the free-use provisions.Footnote ⁸¹ The Chinese Copyright Law needs to extend the exceptions in Article 22 that entitle clearly defined “authorized entities” to produce and communicate works in “accessible formats” for the print disabled.

In addition, universities should be expressly included as authorized entities and actively take part in facilitating accessibility for the print disabled. A case study conducted by Nicolas Suzor and Paul Harpur shows that the provision of e-book libraries in Australian universities, created by the conversion of standard books to accessible formats, has substantially enabled persons with print disabilities to access books.Footnote ⁸² In the Chinese context, an empirical study by Chen Li found that blind and visually impaired students in Chinese universities have a limited choice of textbooks and study materials.Footnote ⁸³ Another study further revealed that libraries in 13 universities located in Beijing provide markedly insufficient reading materials and accessibility support for their disabled students.Footnote ⁸⁴ Thus, expressly including universities within the scope of authorized entities will serve to support the critical role of universities in facilitating accessibility for the print disabled.