Two days ago in the Column Hall of the Sejm conference was held Fri “Television is available for all.” I was asked to preach during its term paper on copyright and its relationship with the problems of people with disabilities. They are, after all, the Polish legal system provisions that provide for an exception to the monopoly prawnoautorskiego precisely because of disability. Additionally, be ready to grasp the direction of future changes in legislation, and that the recent adoption by the WIPO and the signing of the Treaty of Marrakech Poland. Ministry of Culture and National Heritage gently signals the future amendments to the Law on Copyright and Related Rights.
Conference program “TV available for all” can be found on the Forum for Accessible Cyberspace. Recording of the conference proceedings published on the pages of the Sejm. Recording on pages Sejm is enriched text layer – showing expression of speakers (in preparation during the conference by the machine), and is complemented by a translation into sign language (one of sign languages, because there are also different standards – is, for example. The language that the people of the Deaf is the first language that learn, and it is not easy flashing Polish language syntax.)
I and I produced during the conference their own videogram. Had stood beside me sign language interpreter – would copyright problem, because the translator is also an artistic performer. Using its implementation, therefore, must have legal significance. The same sign language translation is usually to develop the work, which is determined by the speaker of expression. Thus, if we consider the availability of television for people with disabilities, it is worth remembering that the copyright laws are predominantly economic. A lot can be done, but first you have to work out legal matters. After all, television can not freely use the translation (sign language), audio description and subtitles …
Speech by Peter Waglowskiego on copyright laws in the context of the availability of information for people with disabilities. The paper was given at the conference Fri “Television is available for all”, September 2, 2014, Column Hall of the Polish Parliament.
The Act defines broadcasting audio description – in art. 4:
28) audio description is verbal, audio-description and visual content contained in the audiovisual programs for people with disabilities due to dysfunction of the eye, located in the broadcast or distributed simultaneously with show they.
defined audio description, but why? Well, after that, in the rest of the law to save:
Art. 18a. 1 Television broadcasters are obliged to ensure the availability of programs for people with disabilities due to dysfunction of the eye and the disabled due to dysfunction of the organ of hearing, by the introduction of appropriate facilities: audio description, subtitles for the deaf and translations into sign language so that at least 10% quarterly transmission time, with the exception of advertising and teleshopping, had ta-heavy facilities.
Now that audio description is something additional, complementary programs, the question of the nature of this “audio description”. Well, it will probably work, and to this track dependent (and therefore its use would depend on the consent of the author of the original work, namely from the rights to the program, which is supplemented with elements to facilitate access). The audio description can be made to “different levels” of detail, at different levels of creativity. The Reader – if this is not the effect of the synthesizer – is an artistic performer.
Directive 2001/29 / EC of the European Parliament and of the Council of 22 May 2001. On the harmonization of certain aspects of copyright and related rights in the information society provides in Art. 5, paragraph 3 point b, that Member States may provide for exceptions or limitations to the rights referred to in Art. 2 and 3 in the following cases:
(…) b) use for the benefit of persons with disabilities, if the use is directly related to the disability and non-commercial nature, to the extent which results from the disability;
Pts. 43) The preamble to the Directive states that
in any case important for the Member States to adopt all necessary measures to facilitate access to works by persons with disabilities, which constitutes an obstacle use of the works, taking into account the available formats
In the context of television, we have also ratified by Poland provisions of the UN Convention – September 6, 2012. In her art. 30 we read:
States Parties recognize the right of persons with disabilities to participate on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:
(…)
(b) will have access to television programs, films, theater and other cultural activities, in accessible formats,
(…)
3. States Parties shall take appropriate measures, in accordance with international law, so that the legislation on the protection of intellectual property rights do not constitute an unreasonable discriminatory barriers to people with disabilities in access to materials related to the area of culture.
So, availability, yes, but so as to reconcile it with the intellectual property rights.
Polish Act on Copyright and Related Rights was an exception, which corresponds to the previously signaled the exception permitted by the Directive. It’s about art. 33 prim Law on Copyright and Related Rights:
You are free to use the already published works for the benefit of persons with disabilities, if it is preferred that relates directly to their disability, there is no profit-making nature and is undertaken in size resulting from the nature of disability
This provision, which was included in the Act under the “fair use” and, therefore, will apply to them also “three-test.” But – what is important – this provision can not be applied to computer programs (due to the provisions of Art. 77 of the Act). However, under Art. 100 of the Act – this exception also applies in the case of exercise of the rights to performances, phonograms, video recordings, broadcasts, and the first publications and scientific and critical. This exception therefore limits these rights.
The exception of Art. 33 prime indicates the possibility of the use of works without permission of the rights and without having to pay wages to their authors. They will be able to benefit from this exception, all natural and legal persons (public, private, associations, foundations, educational institutions, culture and so on.) That adapt songs to service by persons with disabilities. But there is a problem of an economic nature. Best give voice here ZAiKS these:
(…)
– use “is a non-profit in nature,” or that the entity preparing the songs fit for perception by disabilities may not have the intention of obtaining income and work within the framework of business risk. means at least assume in advance that all the proceeds equal to the cost. First of all, will therefore be about the entities that have the financial resources for the support of people with disabilities by covering only the cost of specific projects.– is “undertaken in size resulting from the nature of that disability,” or on particular types of disabilities (eg. sight, hearing, movement) and not the disability. This means that the songs should be made available in a form appropriate to the type of disability of the persons for whom they are intended. In other words, the song has to be adapted to the perception of a given group of people with disabilities, for example. Deaf video for “blinking” for the blind miniature sculptures to touch. From the content of exception is disabled so all kinds of production units also likely to get buyers in the circle without disabilities (eg. book narrated), addressed to the circulation from the beginning of the commercial and manufacturing intended to make a profit.
(…)
So – as indicated by the collective management organization – not for profit and not in such a way that someone else, other than disabled, he could take advantage of it …
Now small intercalation of Polish “practice.” Now, in 2013, Prosecutor’s Office dropped the investigation on napisy.org. known that page napisy.org disappeared from the web in May 2007. What can be read from the archive media reports from that period? Now you can read the following:
- “prosecutors received the opinion of the experts – who conducted the inventory of content and spoke about copyright – and decided to discontinue the case. Experts stated fact that the translation of films from the hearing does not infringe any copyright, especially if the translators did not take money for it “- this is the Gazeta Legal: Interpreting the subtitle without penalty. Prosecutor’s Office dropped the investigation on page napisy.org
- Elizabeth Łowicka, deputy head of the Prosecutor’s Office in Zabrze was stated that “the reason for such a decision was justified by ignorance of the illegality of the action and explains the site administrator” – this is the Virtual Polish, which reported the text of Gazeta.pl (now available)
- without setting specific author subtitles can not think of objections, so were discontinued.
What’s with the experts? After all, does not refer to the fact experts determine legal status. Chartered can not say whether violating the rules or not. experts checked the German server. found there admittedly more than five thousand subtitling films, but the determination of their authors was impossible. considered the possibility of the ISP to issue IP addresses of computers from which they were sent, but found that the files have been uploaded more than three years earlier, and meanwhile Network providers keep logs of the identification data of Internet users over 24 months.
The case was discontinued, but it does not determine whether there was an infringement of copyright or not. Probably the publication of such inscriptions is to enter into the realm of monopoly prawnoautorskiego, and this – remember the above. ZAiKS position – such inscriptions are other than disabled, groups of people. For this reason, could not be used here exception of art. 33 of the Act prim …
As I said – if you try to meet accessibility criteria by adding complement, for example. Within words (for example. “Hear applause”), not just “a simple way to translate” one layer to another – comes to the preparation of the study. Audio description will be track dependent. Perhaps, therefore, the operator of the rights could not agree on this, that when his song functioned very attractive, not casting an intentional artistic values, poorly prepared, or simply unsightly “associated facilities”
What else should be taken into account when analyzing the problems of copyright in a collision with the postulate of ensuring accessibility for people with disabilities?
In 2009, signaled the work on the Treaty of WIPO, which would aim to guarantee access to copyrighted works for persons with disabilities – not just blind and visually impaired, but also those affected by dyslexia, people partially or completely paralyzed, etc.. Here the problem was negotiations. Against the rights of access measures taken by the countries such as USA, Canada, Australia, New Zealand, but 18tej session of the Committee. Copyright and related rights against the support of the rights of disabled persons declared themselves the representatives of the European Union … Does it mean that they are against people with disabilities access to culture and information in the broad sense? Rather, it is that – as I mentioned – copyright is economic. Exception for disabled people can make that business will not earn wherever he could.
been negotiated on and at the end of June 2013 WIPO adopted the Treaty of Marrakech – Treaty that Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities in Marrakesh.
So what was negotiated
- application of the Treaty is limited to the literary and artistic works, in the form of text, write or related illustrations, published or in any otherwise publicly available.
- I printed materials to be distributed as copies in formats provide access for people with disabilities.
- these copies could be used only by the beneficiaries (guardians) and will have to respect the integrity of the original song. Changes in the composition will be allowed only to the extent that it will be necessary to make it accessible to people with disabilities.
- The distribution will be done by “qualified entities”, which will deal with the provision of formats for persons with disabilities. This status will be able to get authorized or recognized by the law of entities operating non-profit in the area of education, training, adaptive reading or information access for beneficiaries.
- been thought about the necessity for diligence in dealing with copies tracks and maintains records of activities related to the provision of a copy of the beneficiaries of the Treaty.
- Using a concern only the works or copies thereof acquired in a lawful manner.
- provided also that the private use may occur, provided that the beneficiary has legal access to work or copies thereof .
So, quite sealed amenities.
In June 2014, Poland signed the Treaty of Marrakesh. On the pages of the Ministry of Culture is about appropriate note: The Treaty of Marrakesh. Fair use for people with disabilities. Explaining the importance of the Treaty, inter alia, the Ministry notes that in Poland we have a standard of accessibility (in terms of the aforementioned art. 33 prim), but now in terms of “access opportunities in Poland under fair use to the works printed published abroad, as well as enable access for people with disabilities outside the Polish for works published in our country. ”
What lies ahead? To discuss proposed the introduction in Polish law premise of “commercial availability”:
– limit fair use to cases where it is not possible to purchase commercial copies of works in accessible formats for people with disabilities reasonable conditions for the Polish publishing market
The point here is that disability does not mean that something gets in the sphere of copyright free. Perhaps it will be modified under the copyright laws to “pay off” to create accessible versions of works for which people with disabilities will be able to simply pay “on the market”.
The Ministry of Culture and National Heritage also suggests the direction in What will change in the future provisions of Art. 33 prim. Announces the introduction of the Polish Act provisions:
a) defining the Polish law the status of authorized entities, whose task will be to act as intermediaries in the international exchange of copies of works in formats suitable for people with disabilities;
b) establishing the procedure for granting the status of authorized;
c) defining the scope of the authorized entities and obligations imposed on them;
d) defining the beneficiaries of international exchange copies of works, so the blind, visually impaired and people with other disabilities preventing them from becoming familiar with print,
e) specifying the types of songs, which formats they can be exchanged internationally under the terms of the draft Treaty.
So it changes direction after the signing of the Treaty of Marrakech, which, after all, refers to works mainly printed. Probably the regulations will be “in sync” with other “forms” use of works. And keep in mind that on 19 August 2011. Parliament adopted a law on sign language and other means of communication. There in the art. 4 of the Act proclaims the principle, according to which: “The holder has the right to the free exercise of their choice forms of communication.” When the Act refers to “measures to support communications”, then – as the law dictates – we mean solutions or services enabling the contact, particularly through the “audiovisual communication, including the use of instant messaging.”
For this course, the Law on the computerization of entities performing public tasks, where in the art. Paragraph 18. 1 provides for the delegation to the Council of Ministers to determine certain “standards” access to information resources for people with disabilities. The general rule of “informatization” to meet the requirements of the Web Content Accessibility Guidelines (WCAG 2.0), with the level of AA. And that means that as somewhere on the official page shows that the material is video, then you need to ensure that its text equivalent. The text equivalent is, after all – as in the case of audio description or subtitle – may be (outside realities official) a derivative work, the development of …
In this way we come to smoothly audiovisual materials on the official websites. Because the transmission of the conference, whose record is on the website of the Polish Sejm, however, the material is probably the official? And if the material official, such a material is subject to copyright. It therefore remains a classic in this site the question of “expropriation” of rights by an official publication …
“Code replaces the law” – said prof. Lessig. Therefore, can not miss at the end of the text references to art. 118 prim Law on Copyright and Related Rights:
1 Who manufactures the equipment or its components for the unauthorized removal or circumvention of effective technological protection before playback, recording or reproducing works or objects of related rights or make the marketing of such devices or their components, or advertises them for sale or lease,
subject to a fine, restriction of liberty or imprisonment up to 3 years.2. Who owns, holds or uses equipment or their components referred to in paragraphs. 1,
subject to a fine, restriction of liberty or imprisonment for a year.
Copyright law has a number of provisions of purely economic. Since the market meets the expectations of consumers of culture, such a consumer can not easily create the same “improvements” to allow him to experience the culture. If the song was protected, then remove security, even for the purposes of accessibility for people with disabilities, are not allowed. Because it is a crime …
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