Reading is not unconstitutional

by Digital Rights LAC on September 30, 2014


Who would have thought filing a lawsuit against a legislation permitting a blind person to transform the book One Hundred Years of Solitude into an accessible format, thus, allowing its reading?

By Diego Caballero, Fundación Karisma*

Can you read this text and others without help from anyone or anything? If so, how many books do you read in a year? Do you prefer novels or science fiction? By choosing texts for both pleasure or informative or academic purposes, generally, you have the freedom to choose, is not it? Unless there is a visually impaired person, it does not take you much to navigate autonomously on the Internet and find all the information it offers. A sighted person does not face insurmountable barriers for accessing written texts (physical or digital), but it does for the blind and visually impaired.

Do you know why? Basically, a sighted person is free to choose his/her reading and, in general, any information. Freedom!

In late 2013, the Congress of the Republic of Colombia issued the Act 1680 of 2013. This law guarantees autonomous and independent access to information, communication, knowledge and ICTs for blind and visually impaired. This has meant a breakthrough in the recognition of the full exercise of the rights of persons with visual disabilities.

As part of the ConverTIC program and under the law, the Ministry of ICT acquired a country license allowing free download of a screen reader software (Jaws) and a text amplifier (Magic) for any visually impaired citizen. The legislation also obliges all public institutions install this software and ensure accessibility standards on websites of public and private entities providing public functions. Moreover, Article 12 of the Act creates a safeguard within the copyright law. Thus, visually impaired persons can transform to the accessible format of their choice any work that is not previously available in an accessible format without seeking permission by authors and without paying copyright levies.

Until now, people with disabilities also found legal barriers to transform work format. Act 23 of 1982 and the Andean Decision 351 of 1993, which constitute legal copyright regime in Colombia, do not provide any guarantee to enable visually impaired persons can transform works into an accessible format (they not even safeguard public lending in the country’s libraries). This restrictive legal landscape entails that practices for transforming works into accessible format constitute copyright infringement. Now, at least for visually impaired persons, the article provides a sort of solution to this limitation to access to information and knowledge.

Then, who would have thought filing a lawsuit against a legislation permitting a blind person to transform the book One Hundred Years of Solitude into an accessible format, thus, allowing its reading? Well, right now, the Constitutional Court of Colombia confronts a lawsuit seeking to declare unconstitutional Act 1680 of 2013, as such, it requests their total unenforceability, i.e., calling for “repealing the law.” The lawsuit establishes that Act 1680 of 2013 violates the Constitution (Articles 61, 152 and 158) due to four key charges. The Karisma Foundation along with the Legal Clinic PAIIS filed a citizen intervention, requesting the Court that none of these charges prosper and declaring the constitutionality of the entire Act.

The first charge states that the legislation violates Article 152 of the Constitution, as it develops the fundamental right to equality (Article 13 of the Constitution) for the blind and visually impaired, therefore, it should be treated as statutory law, as opposed to ordinary law. In our intervention, we believe that not all matters related to fundamental rights should be necessarily subjected to a statutory law, as previously stated on the Court’s jurisprudence. Act 1680, although seeking to develop the fundamental right to equality, is not on the core of the right, nor comprehensively regulates it; rather, this right is made operational and functional for the blind and visually impaired, and as such, it was not necessary to treat it as statutory law.

The second charge holds that the guarantee to copyright (Article 12 of the Act), as it is a limitation or exception to a fundamental right —in this case the moral right of disclosure—, should be treated as statutory law. Thus, the article violates the Constitution (Article 152) due to it was not treated as such. In opposition to this, we argued that the guarantee contained in the law falls on the economic rights, not the moral right. The latter is the one that has been considered by the Court as the core of copyright. As the exception does not affect this aspect, then, Article 12 does not have statutory reserve.

In the third charge, it is mentioned that Article 12 of the Act violates the Constitution (Article 158) because it is not related to the other sections of the Act. It is noted that it violates the “principle of unity of matter.” In this view, the purpose of the law of “ensuring access to ICT for the blind and visually impaired” is not related to copyright restriction. As regard to this charge, we suggested that the copyright is a way to operationalize the right to equality, closely related to object of the legislation. Contrary to what the petitioners consider, the law does not refer exclusively to ICT but also, in general, access to information, knowledge and communication (including the analogue environment as well) for blind and visually impaired. Without the copyright exception, the law would have no effect in practice and would not meet its objective.

Finally, the petitioners claim that the guarantee for visually impaired persons, unknown the constitutional duty of the State to protect intellectual property (Article 61). They added that not making conditional the prior authorization by a State entity to the permitted uses of works leads to an irresponsible use of works; therefore, rights-holders will become victims of abuses by third parties. In this regard, we considered that copyright protection is not absolute, and even the copyright system provides mechanisms such as exceptions and limitations that, although imperfect, try to balance the protection of authors and rights-holders with safeguards for the exercise of fundamental rights.

But not being sufficient one demand, in late August 2014, a second complaint against Act 1680 was filed before the Constitutional Court, stating too that its provisions violate the Constitution. Last month, this Court announced a ruling to protect the fundamental rights of a family in Colombia. Let us hope that the good judgment is maintained and that, on this occasion, the Court also chooses shielding the fundamental rights of visually impaired persons. Because reading is not unconstitutional.

Diego Caballero is a law student at Universidad de los Andes. Member of the Karisma Foundation group Law, Internet and Society.

Translated by Amalia Toledo.