Disability, right to culture and copyright: which regulatory option?

Abstract

Access to knowledge and participation in cultural life for persons with disabilities has always constituted a tough challenge. Recent studies show that only 5% of published works are available in accessible format, and the number plummets to 1% in developing countries. Coupled with the high costs of production and distribution, and the full reliance on public funds and intervention of public or non-profit organizations, copyright has traditionally represented an additional obstacle on the path for a broader availability of accessible works. Recently, the situation has worsened with the tilting in the balance between rights and exceptions caused by the legislative response to digital threats, when the unprecedented opportunities offered by new technologies to foster accessibility have been largely trumped by copyright law. Still, the last decades have witnessed the beginning of a paradigm shift, originating from the human rights arena, and moving towards a new definition of the interplay between authors’ rights and the right to take part in cultural life, both at a general level and with particular regards to persons with disabilities. This article offers a diachronic overview of the path that, from the rediscovery of Article 15 of the International Covenant on Economic, Social and Cultural Rights through its General Comments to Article 30 of the United Nations Convention on the Rights of Persons with Disabilities, has led to the adoption of the Marrakesh Treaty. It then analyses, with a focus on the European Union and its Member States, the national and regional responses to the new human rights obligations, looking at the relations between legislative exceptions and model or collective license agreements. The assessment of the strengths and weaknesses of the two main regulatory options lays the groundwork for proposals of further areas of intervention, necessary to fully comply with the international human rights obligations and to achieve the fullest access to and participation in culture possible for persons with disabilities, by using the tools offered by international and national copyright law.