A treaty on copyright exceptions for visually impaired readers, open educational materials, use of the internet without surveillance, and early human rights movements around access to electricity were among issues debated at a recent academic conference on access to knowledge.

Denying blind people copyright exceptions to improve their access to reading material may violate United Nations conventions on human rights, said participants at the 12-13 February event at Yale University Law School (US).

The UN Convention on the Rights of Persons with Disabilities [pdf] requires states to try and “ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory bar to access by persons with disabilities to cultural materials.”

Advocates for a treaty on exceptions and limitations for the blind and visually impaired [pdf] at the World Intellectual Property Organization have not done enough to inform the discussion from a human rights approach, said Ahmed Abdel Latif, who runs the IP program at the International Centre for Trade and Sustainable Development.

It is also “depressing the lack of motivation in the human rights community on the visually impaired treaty,” added Abdel Latif.

The conference at Yale Law School aimed at understanding how human rights principles could aid attempts to expand access to knowledge.

Blind Exceptions: A Legal, Moral Imperative?

In addition to a legal imperative, human rights as a moral imperative should outstrip concerns over legal norm-setting, participants said.

“You don’t hold a vulnerable population hostage in these negotiations,” said James Love, director of Knowledge Ecology International, speaking about moves at WIPO to slow the creation of a treaty for fear of weakening copyright law. “The International Journalism Association, the Recording Industry Association of America … why are all these groups piling on against blind people?” he said.

The treaty must be signed, if necessary making the decision that it will not set legal precedents in copyright, said Love, adding that the visually impaired “are being asked to be a part of a fight that doesn’t concern them.”

What Can Human Rights Teach A2K?

The connection with human rights to other access to knowledge issues was not as clear, and often seemed to entail risk, said other panellists.

“Will human rights make intellectual property “more just or just more powerful?” asked Lea Shaver of the Yale Information Society Project, in opening the conference.

If the access to knowledge movement turns to human rights, it could backfire as corporations (spuriously) claim IP rights as human rights, said Laurence Helfter, co-director of Duke Law School’s Center for International and Comparative Law and steering committee member at its Center on Human Rights.

But human rights, in particular the principle of state accountability, could help where barriers to access are systemic, suggested Molly Beutz Land, an associate professor at New York Law School. Sometimes, for example, educational materials are unavailable because of IP rights, she said. But there are countless other reasons why they may not be
available: there’s no market, no authors or publishers, no trucks to carry them where needed, or no roads, no schools, no teachers; here, state action could help.

Some suggested ‘rights’ was the wrong terminology. Natasha Primo of the Association for Progressive Communications asked “do we look at rights, or do we look at human capabilities?,” explaining this is the difference between knowing you have a right to something and being able to claim that right.

“Distributive justice is a much more promising approach” than rights, suggested Talha Syed, an assistant professor at the University of California Berkeley Law School, as rights are often associated with “absolutist claims of inviolable interest” which can be impractical. For example, with the right to health: not everyone can be totally healthy for their entire life expectancy.

The idea of distributive justice takes the idea that each person has a legitimate claim to the resources they need and adds that those who are worse off overall have a greater claim over social resources, said Syed.

This reframes the often-heard argument that IP rights may temporarily price people out of access to medicines but in exchange will support future innovations in medical care. The real trade-off, Syed said, is between access for poor consumers today and access for rich consumers – who will be able to access patented drugs – tomorrow. Poor consumers should have greater priority, said Syed.

It is also necessary to examine what ‘human rights’ means, said Amy Kapczynski of University of California Berkeley Law School. There are at least three different ways to look at human rights: as an analytic or philosophical framework, as “t-shirt rights” or political claims that are more normative than legal, and as a set of legal structures and commitments, she said.

Rights language may be of more use; it can be used on companies when we say you’re violating human rights in a moral sense. Campaigners get their first and somehow that filters its way into law in Geneva, she added.

Let There Be Light, Hopefully With Technical Standards

Human rights calls for access to knowledge may be older than generally conceived, said Lea Shaver of Yale Law School’s Information Society Project, who told the story of what has become the universal symbol of innovation.

Lightbulbs in the United States were first used in the 1880s, said Shaver, where they lit up the Statue of Liberty and created the “Great White Way” over the Broadway theatre district in New York. But 50 years later the average US citizen still didn’t have regular access to lightbulbs, even as some European countries were reaching ninety percent electricity penetration, she said.

In the US, a patchwork of companies were supplying electricity with non-interoperable technical standards, making competition difficult and prices high. Edison Electric, which owned patents on the lightbulb, had litigated aggressively to preserve its monopoly. In Europe it was a different story: in Scandinavia state-owned utilities were managing electricity and in Germany a private price-regulated monopoly resulted in nationally consistent technical standards, said Shaver.

Then the 1930s saw “something like a human rights movement” in the US, she said, including one US mayor being sent to jail for trying to set up a public utility to provide electricity. But once public utilities were created, Shaver said, “50 years of failure was followed by 15 years of dramatic success” in which the technology suddenly became widely available.