Accessibility and law

In this presentation from the 2018 Typefi User Conference, Typefi Business Development Manager Emily Johnston discusses accessibility legislation and standards that affect publishers around the world.

Slide Deck (PDF)

Transcript

EMILY JOHNSTON: Hello, everyone. As Chandi mentioned, I am a Director of Business Development for Typefi. I work mostly with our US and Asian markets, so for most of you, I’m probably an unfamiliar face. But perhaps not for all.

As Chandi mentioned, you might be wondering why as Business Development Director I’m giving this presentation on accessibility and law. Well, I do actually have a law degree. As he mentioned, I’ve never practised, but this is an area of interest for me.

So, I do want to, of course—because I have a legal background—I have to add a disclaimer at the beginning.

This is meant to be a session that’s an overview on laws and regulations that impact on accessibility. To give you an idea of what the different authorities are that are out there, so that you know what you need to talk about with your own legal teams in order to figure out how you move forward with accessibility within your organisations.

So, in terms of what I’m specifically going to cover in this session, I’m going to talk about the international scene, and as Chandi and others have mentioned before, one of the primary authorities on the international scene is the Marrakesh Treaty, so I will talk about that.

I’m also going to talk about some regional and national legislative authorities in the United States, the UK, and in the European Union in general. I think that covers most of the people who are in this group here.

An introduction to accessible publishing and the Marrakesh Treaty (for VIPs)

As we get started, I’m going to actually ask you to do something a little bit different. You’ve heard background about the accessibility movement and why it’s important, but I’m actually going to ask you to become VIPs for me.

And by that I don’t mean very important people, though of course you are—I mean VIPs as defined by the World Intellectual Property Organization. And they define a VIP, of course, as a visually impaired person.

If I could ask you to close your eyes for a moment, if you feel comfortable, and imagine that you wanted to access this presentation on accessibility and law, and the only method you had to access that information was a printed transcript of what was said during this session.

So, if you’ll bear with me and close your eyes for a second, imagine this was your experience.

The global movement focusing on content accessibility has been growing for decades. At the core is a fundamental belief that all people have the right to full access to information and the global exchange of ideas, and the human experience is improved when that is achieved.

There are, of course, many factors that have contributed to the growth of this movement. In part, the number of people with visual impairments and/or print disabilities worldwide is growing.

People are living longer than ever before, and these impairments most often occur as populations in those demographics age. In addition, birth rates worldwide are increasing, and so the number of children being born with visual impairments is also growing.

The growth of these numbers of people with visual impairments and print disabilities represent a large market of content consumers that are largely underrepresented.

This has contributed to significant changes within publishing, resulting in advancements in standards and technology, making content available in more ways than ever before.

Even with these changes, the World Blind Union estimates—like Chandi said earlier—that most published materials worldwide are still not available in formats that are accessible.

Organisations who are interested in helping to make that content accessible encounter challenges in the form of current copyright rules and laws.

This means we have a growing population of VIPs who must, who want and deserve to have better access to content, publishers, and organisations that want to help make that content accessible, and the technology to make that happen.

This has all culminated in treaties and legal requirements designed to help make full accessibility to content a reality.

We will start by taking a look at the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind or Otherwise Print Disabled, or simply the Marrakesh Treaty.

According to the World Intellectual Property Organization, who administers the treaty, to date 35 countries have ratified the treaty. And an additional 57 have signed it, ratification pending.

So let’s stop there for a moment, and I’ll ask you to open your eyes again.

Now, because you were VIPs for the last few moments, you weren’t able to see the slides that I put up, so there’s some important information that you missed.

For example, there’s a table here that has information, specific statistics on the breakdown of the demographics, the different ages and what kind of visual impairments people have.

There’s also statistics here, specific statistics about the percent of books worldwide that are not accessible, as well as a map that shows specifically what countries have ratified the Marrakesh Treaty, and so you weren’t able to see if your country was one of them.

So, I’m actually going ask you to bear with me again and close your eyes a second time. And let’s experience what would happen if we took this content, this piece of the presentation that I just presented, made it into an accessible format, incorporated some of the materials from the slides, added alt text for that image, and allowed you to experience what the tables said as well.

So, if you’ll close your eyes for a moment again.

Note: The source content for the following reading is available for download as a DAISY file or as an accessible PDF.

SCREEN READER: Accessibility and law.

The global movement focusing on content accessibility has been growing for decades. At the core is a fundamental belief that all people have a right to full access to information and that the global exchange of ideas in the human experience is improved when that is achieved.

There are, of course, many factors that have contributed to the growth of this movement. In part, the number of people with visual impairments worldwide is growing. People are living longer than ever before, and visual impairments most often occur or develop amongst older demographics.

In addition, birth rates worldwide are increasing, and so the number of children born with visual impairments is also growing.

The World Health Organization report titled Global Data on Visual Impairments 2010 showed that an estimated 8.47%, or 550,778,000 people worldwide have some level of visual impairment.

Table one, global estimate of the number of people visually impaired by age, 2010. Ages and years, population millions, blind millions, low vision millions, visually impaired millions.

Zero to 14, 1,848.500. 1.412. 17.518. 18.939. 15 to 49, 3,548.200. 5.784. 74.463. 80.248. 50 Older. 1,340.800. 32.160. 154.043. 186.203. All ages, 6,737.500. 39.365. %0.58. 246.024. %3.65. 285.389. %4.24.

Source, World Health Organization, Global Data on Visual Impairments 2010.

We have also seen significant changes within publishing, resulting in advancements in standards and technology, making content available in more ways than ever before.

Even with these changes, the World Blind Union estimates that 90% of published materials worldwide are still not available in formats accessible to the visually impaired.

Organisations who are interested in helping to make that content accessible encounter challenges in the form of current copyright rules and laws.

This means we have a growing population of VIPs who want and deserve to have better access to content, publishers and organisations that want to help make that content accessible, and the technology to make that happen.

The challenge is finding the right mechanisms to achieve these goals. This has all culminated in treaties and legal requirements designed to help make full accessibility to content a reality.

We will start by taking a look at the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind or Otherwise Print Disabled, or simply the Marrakesh Treaty.

The treaty was initially adopted on June 27th, 2013 and came into force on September 30th, 2016 when the 20th participating country ratified the treaty.

According to the World Intellectual Property Organization, who administers the treaty, to date 35 countries have ratified the treaty, and an additional 57 have signed it, ratification pending.

Figure one world map, the Marrakesh Treaty signatures and ratifications. This map shows which countries have either signed or ratified the Marrakesh Treaty.

Nations that appear in red have ratified the treaty. These nations include Argentina, Australia, Botswana, Brazil, Burkina Faso, Canada, Chile, Costa Rica, Democratic People’s Republic of Korea, Ecuador, El Salvador, Guatemala, Honduras, India, Israel, Kenya, Kyrgyzstan, Liberia, Malawi, Mali, Mexico, Mongolia, Nigeria, Panama, Paraguay, Peru, Republic of Korea, Republic of Moldova, Russian Federation, St. Vincent and the Grenadines, Singapore, Sri Lanka, Tunisia, United Arab Emirates, and Uruguay.

Nations that have signed but not yet ratified the treaty appear in blue. These nations include Afghanistan, Austria, Belgium, Bosnia and Herzegovina, Burundi, Cambodia, Cameroon, Central African Republic, Chad, China, Colombia, Comoros, Congo, Cyprus, Czech Republic, Cote d’Ivoire, Denmark, Djibouti, Dominican Republic, Ethiopia, European Union, Finland, France, Germany, Ghana, Greece, Guinea, Haiti, Holy See, Indonesia, Iran, Ireland, Jordan, Lebanon, Lithuania, Luxembourg, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Nepal, Norway, Poland, Sao Tome and Principe, Senegal, Sierra Leone, Slovenia, Sudan, Switzerland, Syrian Arab Republic, Togo, Turkey, Uganda, United Kingdom, United States of America and Zimbabwe.

All other nations appear in yellow.

Source, World Blind Union.

EMILY: You can open your eyes again. Thank you for bearing with me.

I know that was kind of long, but it gives you an idea of the gap that’s being filled by accessible content. You can see that the experience you had when you got to hear the accessible version was so much richer than the version that I presented originally, which was missing all of this information.

And, of course, this is the base behind the movement for accessibility, and legal right regulations are one mechanism in which we’re able to move this movement for accessibility forward.

The Marrakesh Treaty

We’re going to take a look, like I said, at some different legal authorities, starting on the international scene with the Marrakesh Treaty, which some of you may be familiar with on different levels.

The primary goal of the Marrakesh Treaty is to help people, of course, who are blind or visually impaired, or otherwise print disabled, be able to access published works. As I mentioned before and has been mentioned previously, it’s estimated that only 10% of publications worldwide are actually available in accessible formats for people with disabilities.

A significant reason for this gap, of course, as I’ve mentioned, is some of the restrictions that are present in copyright law. So the treaties strive to eliminate those barriers in two main ways.

First of all, countries who ratify the treaty have to enact an exception to their domestic copyright law, which allows visually impaired people and their representative organisations to take published content and make it into an accessible format.

And they can do that without the need to get permission from the copyright holder, whether that copyright holder is a publisher or an author.

Second, the treaty requires countries who have ratified it to allow for the import and export of accessible publications, again without the need to get permission from the copyright holder.

The purpose of the requirements is to help avoid the duplication of efforts across nations. So, to avoid one country creating a whole bunch of accessible content, while another, you know, is doing the same thing.

But also to allow for the free movement of that material, so if there is a nation—one of the poorer nations, for example—that is not able to, or doesn’t have the funding to be able to produce accessible content, that they can receive that information from nations that do have larger pools of content available that they’ve had made accessible.

Only authorised entities—and that’s an important term we’ll talk about throughout this presentation—only authorised entities such as organisations representing the visually impaired can export accessible books. But either an authorised entity or an individual who’s visually impaired can receive or import an accessible book.

So I’m going to break it down here and talk in a little more detail about some of the specific sections of the Marrakesh Treaty, what they mean, and why they might be important to you.

Article 2(a) defines the terms ‘Works Covered’. These are the type of publications that can be made accessible and are distributed under the terms of the treaty.

I’m going to quote directly from the language here. This covers, quote, “literary and artistic works in the form of text, notation, and/or related illustrations, whether published or otherwise made publicly available in any media”. This includes books, periodicals and other similar textual works. As well, sheet music would be included, but it does not cover films.

The treaty does not allow for the content to be changed in any way, it only allows for the transform of that publication into an accessible format. If you are taking the content and modifying it, more than likely you are making a version that would not be covered by the Marrakesh Treaty.

Article 2(b) defines ‘Accessible Format Copy’. So what formats can you actually convert to, under the Marrakesh Treaty?

That is very broadly defined to allow transformation into whichever format will provide access to the content as, quote “as feasibly and comfortably as a person without visual impairment or other print disability would experience”.

So that is a very broadly defined term, and gives you a lot of latitude in how you would produce your accessible publications.

Article 2(c) defines ‘Authorised Entity’. The role of the authorised entity is critical within the treaty, and is defined as a non-profit or government agency that makes successful copies of covered works.

An authorised entity must limit distribution of copies to only those people who do have a disability or are a beneficiary person, which is another term under the treaty. And they must make sure they are giving due recognition to the author of that publication.

The definition also covers for-profit entities that provide services to beneficiary persons. But those for-profit entities must use public funds or be providing that specific content on a non-profit, not-for-profit basis.

There is no specific process or mechanism for being designated as an authorised entity. So, as you can imagine, you just have to fall in to meet the broad definition of what the treaty has defined here.

Moving on to Article 3, Article 3 outlines the meaning of the term ‘Beneficiary Persons’. This is broadly defined again, to include just about any disability that interferes with the effective reading of printed materials.

It includes people who are blind, visually impaired, reading disable—so, for example, if you have dyslexia or a reading disability like that, as well as physical disabilities. If you’re unable to hold a book, or focus on a book, that type of thing.

Article 7 talks about the Technological Protection Measures, or TPMs. This pertains to those digital protections that you may put on a digital book to ensure that people aren’t taking it and copying, or distributing it, or using it in a way that they shouldn’t be.

But those TPMs do sometimes result in the inability of people with accessibility issues or print disabilities to be able to access that file. So if you are in a country that has ratified the Marrakesh Treaty, there is a requirement that a beneficiary person could go around those TPMs, and that they can do that without needing to get permission to do so.

Now the copyright holder is not completely left out of the treaty, although there isn’t a lot of meat or a lot of regulation around protections for the copyright holder. The language does express a desire to respect, of course, the copyright holder’s interests in that book.

Article 2 of the treaty makes it clear that accessible books or content exported under its provisions should be solely for the use of beneficiary persons, and that it is the responsibility of the authorised entity to take due care to ensure that only beneficiary persons are receiving that content.

It’s also important to discuss the idea of a commerciality test, which is something that has come up or did come up quite a bit during the negotiations and discussions leading up to the treaty.

It was the position of a number of participants that there should be a commerciality requirement included in the treaty.

So if a publication was commercially available in an accessible format, then that certain publication would not be one that qualified under the Marrakesh Treaty, because people with disabilities would be able to access that.

Others disagreed with that point of view, because they felt that would make it too difficult for the treaty to be enforced, if people had to go out and try and figure out if there was some sort of commercially available version somewhere. That it would be challenging.

So the language that resulted does allow for a commerciality test if you are exporting a material or a publication, if that’s part of the nation’s copyright law. It is the requirement that that nation contact or notify the World Intellectual Property Organization to let them know that they do intend to impose a commerciality test.

But there isn’t language in the treaty that covers the import of materials and a commercially available requirement. I’m sorry, I mixed that up. For exporting, there isn’t a commerciality requirement.

So finally let’s talk about the distinction between signing versus ratifying the treaty. As I mentioned before, 35 nations have ratified the treaty and 57 have signed it and the terms of the treaty actually only go into effect in the nation if it has been ratified—gone through the formal ratification process.

So if you live in a nation which was listed before, which has signed the treaty but not yet ratified it, you should stay tuned to see how that moves through your nation’s legislative process. But for those nations who have actually ratified the treaty, then it would be enforced in your nation.

Regional and national legislation

So I wanted to take a moment and focus on some of the regional and national legislation and legal requirements that may impact on you and your organisation, and I wanted to start by talking about the European Union.

The European Union

To start with the European Union and the Marrakesh Treaty, just an update, I’m sure many of you who have interest in this area have been paying close attention.

On the 13th of September, 2017, the EU ratified the Marrakesh Treaty, and in January and February of this year, they took further steps to move the Marrakesh Treaty into an implementation and adoption phase.

Based on information from the EU, and what they have outlined on their website and press releases, they are planning to begin implementation this summer. So stay tuned and pay close attention if you’re in the EU, because that will be coming through very soon.

The other accessibility related legislation that I wanted to talk about on the EU scene is the European Accessibility Act. This is, again, a further piece of legislation to keep an eye on. It’s currently making its way through the parliamentary process.

On 14th September, 2017, the European Parliament voted to support the European Accessibility Act, which aims to make key products and services more accessible.

The draft that they created does cover both e-books and e-readers, and so overall the intent is to outline services and products that are intended to be accessible, but not to define specifically what that means. And the goal is to allow people to be able to be creative and innovative in how they approach that.

But watch that closely, because again, more to come soon.

United Kingdom

All right, in the United Kingdom, there are three main pieces of legislation that I wanted to talk about that can impact on content publishers.

The first, the UK Copyright and Rights in Performance regulations of 2014. This specific piece of legislation includes an exemption to copyright for those with print disabilities. This allows disabled persons to make copies of works for personal use, which does not apply to works that are accessible and commercially available.

So there is a commerciality requirement there. And they must be commercially available on reasonable terms by the author or copyright holder, so there could be some leeway there to argue whether or not it is a reasonable availability.

This exception also allows authorised bodies to make and supply accessible copies to print impaired people. Authorised bodies have to make those accessible copies available with the disclaimer that says they are being made accessible under this law, and they do also have to ensure that they are giving full credit to the author for that publication.

The Equality Act of 2010 makes it illegal for providers of goods and services, including publishing, to discriminate against disabled people, including those with print impairment. For example, they cannot treat them less favourably than others or fail to make reasonable adjustment to account for that disability.

And finally, with the Marrakesh Treaty, the MEPs for the UK did vote in the EU parliament in favour of ratifying the Marrakesh Treaty.

But of course, with the ever-changing landscape of Brexit, it’s not exactly clear how that will end up applying to the United Kingdom. It might be that the UK needs to ratify the treaty independently, so stay tuned on that as well.

United States

Within the United States, there are several laws or treaties to discuss as well. To start, an update on the Marrakesh Treaty, of course. President Obama did sign it and so indicated an intent for the United States to become compliant with the treaty.

But after it was submitted to the Senate, really nothing has happened with it since, and there isn’t a lot of indication that it’s going to be picked up anytime soon. But still, keep an eye on that.

And then there are a couple of pieces of legislation, which I’ve grouped here. These are legislation for people with disabilities generally.

The Americans with Disabilities Act, or the ADA, prohibits discrimination against individuals with disabilities in the workplace, in state and local government programs and activities, and in places of public accommodation.

So that, along with Section 504 of the Rehabilitation Act, which bars recipients of federal financial assistance, such as federal, state and local governmental agency programs and services, from discriminating against individuals with disabilities.

So those two combined have led to a series of cases and led then to other interpretive works that have been applied to websites and other sorts of electronic accessible formats related to publishing.

And then, as Chandi talked about before, Section 508 of the Rehabilitation Act is something that has been very, very broadly talked about in the US and is a standard for accessibility.

Section 508 of the Rehabilitation Act ensures that people who are visually impaired must be able to access all government information and services, as independently and effectively as those who are sighted, so it’s a very broad, broad law.

And again, it really pertains to access to government information, but if you are receiving government funding, or working with the government, you would need to be aware of how that does impact you.

And then, of course, US copyright law is a very broad area, and currently there is not a specific blanket exception for accessibility within US copyright law, but there are a few related statutes and exceptions that I will note.

One of them, of course, the idea of fair use. So within the Copyright Act, the Chafee Amendment Section 110 permits an authorised entity to reproduce or distribute copies of previously published non-dramatic literary works if the copies are reproduced or distributed in specialised formats exclusively for use by blind or other persons with disabilities.

Authorised entities include non-profits or governmental agencies whose primary mission is to provide specialised services relating to training, education or adaption for reading or information access for the blind or other persons who are print disabled.

As we’ve seen with other legal authorities worldwide, the vague definition of ‘authorised entity’ has resulted in confusion and a lot of interpretation—exactly what that means—particularly within the university community, and whether universities who are producing content publications are authorised entities.

Now, to talk a bit about the fair use doctrine. This is one exception to copyright law that has been used to promote accessibility for copyrighted works.

The most general sense of fair use is any copying of copyrighted material, done for a limited and transformative purpose—such as to comment upon, criticise or parody a copyrighted work—such uses can be done without permission from the copyright owner.

Application of fair use often manifests itself in court rulings that are interpreting, of course, the balance of the law. An important such recent decision came in the case of the Author’s Guild Incorporated versus HathiTrust.

HathiTrust created a shared digital repository collection of materials from academic and research members and made it available to the public. Well, to qualifying persons with disabilities.

The district court held the activity was permissible under the Chafee Amendment, as these were authorised entities. On appeal, the Second court actually held that even though they did agree that it was permissible under the Chafee amendment, that it was actually a permissible use under fair use.

So I did also want to mention in the United States, of course, there are state laws to consider as well. And the different states of the United States may have regulations about disability, accessibility and access that are additional to the federal laws, particularly in the area of education.

There are a lot of states that have passed laws or purchasing requirements particular to education and the books and materials that are being purchased and used within their schools. So if you are part of an organisation that is selling or providing materials to states and schools in the United States, that’s something to keep in mind as well.

Conclusion

So, in conclusion, you will have seen a lot of similarities across the different jurisdictions, and the different kinds of terms and stuff that are being used—authorised entities, accessible formats, who a beneficiary person is.

Hopefully this was a useful overview of what some of those laws and authorities are, so that you can go back and speak to your internal legal departments to figure out which apply to you and what the best strategy is for you moving forward. Thank you very much.

Q&A

AUDIENCE MEMBER 1: Who will say how accessible something has to be to argue that something is already accessible? Because we heard earlier there were different levels of accessibility.

EMILY: There are a variety of different authorities, depending on where you are, but a lot of the legislation has remained pretty broad and vague in terms of that. Which also means there isn’t a lot of enforcement mechanisms necessarily, that have been developed yet in that regard.

AUDIENCE MEMBER 2: Actually, just to follow up on that, do you know of any kind of case law where publishers have fallen foul of any of those regulations, laws, had some liability for not publishing in accessible formats?

CHANDI PERERA: I can grab that. There’s a very famous case in Australia where IBM lost a case, I think it was in 1992 or 93, the run up to the 2000 Olympics in Sydney. The website wasn’t accessible.

IBM got sued and I think they ended up paying 200 million to redevelop the website, and I think that was the first case law in the British legal system at the time. Which is also why when you look at the regulations in Australia, the regulations pre-date all the other ones by about 10 years.