Key Factors in Generic Disability ICT Access Rights

Submission to EU Consultation on eAccessibility

Date: 28/05/2008

1. Introduction

1.1 For more than a century, notably in the area of access by blind and visually impaired people to standard, printed text, there has been a piecemeal struggle to realise access rights. Indeed in the United Kingdom it took just over 100 years for blind people to gain automatic right to single copy braille transcriptions of text in the public domain without the author's specific permission.

1.2 In the analogue age, the rights of access depended on the specific factors of the different media industries:-

Book publishers were cautious but: reluctantly agreed to braille; were nervous about modified (usually but not exclusively enlarged) print; and were deeply worried about audio which they thought (without evidence) would be illegally copied for commercial purposes;
Broadcasters, being subjected to the public sector (usually governmental) allocation of rare spectrum, could be easily subjected to the imposition of standards by legislation or regulation as conditions of spectrum licences; this was particularly true of state broadcasters funded from special payments or taxation where a fiscal argument supported a citizenship argument;
The film industry was largely indifferent to accessibility pressures because although its product resembled television its industrial model was nearer publishing;
The audio book and audio music industries were frightened of piracy but learned to live with the cassette tape recorder and there was a limited amount of private copying but this did not ease the accessibility tensions, particularly where abridged audio book rights holders blocked full length copies for accessibility purposes.

1.3 As the digital age emerged after a long period of static analogue production, a symbiotic industrial dynamic developed between hardware manufacturers and content carrier producers (often different sections of the same conglomerate); in computing this was represented by the hardware/software alternating ratchet (applications needed more processing power and more processing power enabled larger applications). In consumer electronics the CD has been a stable product for two decades but there has been much greater flux in mobile phones.

1.4 The change from analogue to digital and the prospect of convergence have not altered the context within which accessibility rights have been sought: with the arrival of each new medium a new initiative has had to be launched. Thus securing accessibility rights for a digital television programme has not automatically meant that the same product is identically accessible as a retailed DVD. Campaigners on behalf of the ICT accessibility rights of disabled people are therefore faced with a serial effort which lags some way behind the generic retail market.

2. General Principles

2.1 The range of principles which cover rights of access range from universal declarations of equality to reliance on the market. In the digital age ICT accessibility has been a clear case of market failure:-

Only in broadcasting has the degree of accessibility increased, not least as the result of the falling costs of rendering additional services (at least for sub titling and audio/video description if not for signing);
In spite of the digitisation of text publishing, progress has been painfully slow on releasing files for alternative format rendering braille, modified print, synthetic speech) so that 30 years after the first computer-driven braille production systems, production still largely reflects analogue costs, practices and limited output;
There are still serious limits to alternative format audio production in spite of no evidence of piracy (well, at least not by blind and visually impaired people!);
In spite of massive production budgets, commercial cinemas and DVD copies are frequently inaccessible.

2.2 The market failure to make digital products accessible in spite of falling costs, the increased importance of information in society for education, work, citizenship, leisure and creativity and the likely development of a succession of new products for carrying and communicating information indicate that the balance between a universal right of access to information and a market based solution has shifted radically in favour of a legislated or regulated solution.

2.3 This Paper therefore proposes the following:

That the European Union, in line with the United Nations Declaration [1] should enact a Directive which guarantees the right of any disabled individual or any government, governmental agency, government funded agency, general or public utility, or organisation working with or on behalf of disabled people to render accessible any information in the public domain.

a) This is an extremely modest proposal because it imposes no obligations on information publishers although, of course, additional obligations may be imposed, for example, in the area of public broadcasting. This proposal is the absolute minimum.

b) The logic of the proposal is that it is non discriminatory without imposing heavily on publishers; it simply prevents publishers preventing legitimate accessibility rendering.

c) The proposal makes no reference to a medium or media so that there will not need to be a new provision every time there is a new technology.

d) There is a serious problem with a more general obligation on publishers (see 2.4 below).

2.4 The primary objection to the proposal in 2.3 is that it does not guarantee any right at all but simply provides a provision which can be implemented by individuals and organisations. The rights-based approach, however, which might be put at its simplest as follows:-

All citizens have a right to access all information in the public domain

places an unlimited obligation on information producers far beyond their capacity to comply: it will cost an online gallery of new paintings more to describe its pictures for blind and visually impaired people than it will cost to upload them for potential customers; it will cost a small music label more to prepare subtitles for deaf and hearing impaired people of all its lyrics than to upload the tracks. There needs to be some sense of peer normative rights of access which takes into account the capacity of the producer, the measurable benefit to the disabled consumer group and the peer normative nature of the material [2].

2.5 The provisions of 2.3 should be supplemented by the following:

Any information which is funded by the public sector or through any general form of payment or taxation or which is peer normative for the disabled end user should be accessible to the end user.

a) It is possible to define peer normativity numerically, i.e. once a product or service is used by x% of a defined peer group - all citizens, elderly people, physiotherapist.

3. Mechanisms

3.1 The reliance on the market solution to produce accessible ICT products and services has been based on a false argument which has sought to shift the obligation from the public to the private sector. Put simply, this argument is that there are enough disabled people to justify the capital investment in accessibility which means that the commercial sector simply needs to be made aware of the profit it is failing to reap because of its lack of awareness. This argument only works in an ecology of unlimited capital; where there is competition for capital it has been shown that the disability demographic is less profitable than, say, the teenage demographic. Shareholders and executives are taking rational decisions about capital.

3.2 Any assertion of a general right involves the abridgement of the right of companies to fulfil their purpose of maximising shareholder value. This abridgement is justified in certain circumstances and the more peer normative a product the greater the justification to impose a statutory or regulatory obligation [3].

3.3 However, if the public sector wishes to impose an obligation to abridge shareholder value, there needs to be a rational discussion about the financial responsibility for implementing the requirement. In some cases the public sector accepts 100% responsibility, say, for some aspects of health and social care. On the other hand it imposes obligations, say, on motorists to carry compulsory insurance without making any contribution. The public sector, commerce and the Third Sector have each tended to 'sit on their hands' and expect the other two sectors to solve the problem. This is not practical. The mid 20th Century consensus that the public sector was the only mechanism for defining and ensuring the enjoyment of rights is no longer realistic:-

The political trend, in spite of increased longevity and its consequences for health and social care budgets, is towards lower levels of taxation;
The Third Sector in many countries is rich, powerful and expert and is given funds by citizens for the specific purpose of enabling its customer/client group to enjoy rights and benefits;
The differential between an accessible product and a non-accessible alternative is a legitimate object for public and third sector funding.

3.4 If a proposal is adopted to impose accessibility obligations on the basis of their high degree of peer normativity (broadcasting, public sector web sites etc), as set out in 2.5 above, the globalisation of production and transmission will mean that the obligation of enforcement has to be switched from the producer or publisher to the supplier of the end-user reception service. This can only be a medium-term solution as many such suppliers may operate outside the country where the citizen is receiving the material but in the interim it is likely that responsibility for:-

Accessibility;
Privacy;
Child security;
National security;

will rest with information brokers and carriers such as ISPs and portal aggregators. In many cases publishers will continue to be brokers, i.e. major broadcasters.

3.5. The ideal principle is that the agency collecting payment should enforce accessibility and the other obligations listed above but payments systems are moving towards globalisation.

3.6 Rights of accessibility rendering (2.3) or accessibility (2.5) should not depend for their enforcement on private legal action by citizens or Third Sector organisations.

Appendix 1

See "Examples of weighting and scoring the accessibility requirement of a web site"

Appendix 2

See "A Framework for Considering Disability Accessibility and Reasonable Accommodation"

[1] Convention on the Rights of Persons with Disabilities

http://www.un.org/disabilities/convention/conventionfull.shtml

[2] Examples of weighting and scoring the accessibility requirement of a web site, humanITy Paper (Appendix 1)

[3] Framework for Considering Disability Accessibility and Reasonable Accommodation, humanITy Paper (Appendix 2)

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