The European Blind Union (EBU) is a non-governmental and non profit-making
European organisation founded in 1984. It is one of the six regional bodies of
the World Blind Union, and it is the only organisation representing the
interests of blind and partially sighted people in Europe. EBU aims to protect
and promote the interests of blind or partially sighted people in Europe. EBU
currently has 44 member countries, each represented by a national delegation.
EBU has taken a close interest in copyright-related issues, because of the
barriers to equitable access to information which the inappropriate use of
copyright can create. We made numerous representations during the passage of the
“Information Society Directive” through the European institutions. We have taken
an active part in subsequent discussion on digital rights management schemes
initiated by the Commission. The World Blind Union, of which EBU is the European
affiliate, has engaged for some years now with the Standing Committee on
Copyright and Related Rights of the World Intellectual Property Organisation (WIPO).
2.1 The European Blind Union has read this evaluation with interest. We are
disappointed to find that it does not address the issues around database
protection that are of concern to blind, partially sighted and other print
disabled people.
2.2 Our concern is not with the sui generis right itself. Our concern is that
the Database Directive does not allow exceptions to exclusive rights for the
benefit of those with a reading related disability. Having no such exceptions,
it also contains no provision to protect the interests of those barred by
technological protection measures (TPMs) from legitimate access to databases.
This form of exclusion can arise when TPMs are not designed to accommodate the
assistive technology which blind and partially sighted people use to access
material on a computer screen.
2.3 People with sight loss or other reading related disabilities have the same
right as all other citizens to read anything in the public domain.
2.4 Directive EC/ 2001/29 on the Harmonisation of Certain Aspects of Copyright
and Related Rights in the Digital Environment (hereinafter referred to as the
Information Society Directive) acknowledged this by specifically authorising in
Article 5.3.(b) exceptions for people with a reading related disability.
Although we would prefer this exception to be mandatory rather than optional, it
does at least exist and a number of member states have opted to enact exceptions
which partially or fully reflect the need which it recognises.
2.5 Yet databases, whether "original" or not, cannot be covered by such
exceptions. This is a fundamental weakness in the overall European copyright
framework.
2.6 Our concerns were addressed at least in part in the Review of the Acquis
issued in 2004: “COMMISSION STAFF WORKING PAPER on the review of the EC legal
framework in the field of copyright and related rights”, SEC(2004) 995.
2.7 We supported the Commission’s conclusions in that Review on the extension of
relevant “copyright” exceptions to databases.
3.1 The inconsistency between the Information Society and Database Directives
was recognised in the Commission's Review of the acquis referred to above. The
Review stated:
“2.2.4.1. Exception for the benefit of disabled [people]
“Member States may adopt in their legislation an exception for the benefit of
people with a disability under Article 5(3)(b) of the Information Society
Directive. Allowing for such an exception has been deemed necessary in order to
make sure, for example, that visually impaired people can put material into an
alternative, accessible format at no extra cost.
“The question arises whether a similar exception would be allowed under the
Database Directive. If not, people with a disability might face a situation
where the statutory exception from which they benefit regarding most categories
of works, could be undermined by invoking database protection on the basis that
certain material might be classified and protected simultaneously as a database
as well as a literary work of a different category, for example an encyclopaedia.
The Database Directive does not contain an explicit provision allowing this
exception, and the respective provisions of the Information Society Directive
cannot be invoked as the list of exceptions permitted under Article 6 of the
Database Directive is exhaustive. It may be held that use for the benefit of
people with a disability is already permitted through a broad interpretation of
Article 6(1) of the Database Directive, which permits certain acts by the lawful
user, if this is necessary for the access to the contents of a database or
constitutes normal use. Such an interpretation, however, is subject to
uncertainty. In any event, possible divergent views on this issue among Member
States may hamper the proper application of the Database Directive in the
framework of the Internal Market.
“From these perspectives, it would seem logical to provide a similar possibility
of an exception also explicitly set out in the Database Directive. In order for
it to fulfil its purpose, such a provision should apply with respect to
databases protected by copyright as well as those covered by the sui generis
right.”
3.2 The Review of the acquis also concluded that the provisions of Article 5.1
of the Information Society Directive, which require mandatory exceptions in
respect of transient copies, should be extended to the Database Directive. In
2.1.3.2 of the Review, the Commission asserted:
“It would therefore appear opportune to consider also aligning the respective
provisions of the Database Directive with Article 5(1) of the Information
Society Directive.”
3.3 In the Conclusion of the Review (Section 4), the Commission stated:
“This paper envisages.….extending the exception for temporary acts of
reproduction to…databases, and adding a new exception for the benefit of
disabled persons for databases.”
3.4 We continue to support these conclusions.
4.1 The Information Society Directive contains in Article 6.4.1 provision to
ensure that beneficiaries of exceptions such as those for people with
disabilities are not prevented from enjoying them by TPMs. While this provision
is somewhat vague, it does at least form a basis for tackling this issue.
4.2 We recommend that provisions of this nature be added to the Database
Directive, along with the exceptions referred to above.
4.3 Section 6 of the Evaluation alludes to a possible increase in the use of
technological protection measures on non-original databases if the sui generis
right is revoked.
4.4 Were the sui generis right to disappear, extensive use of TPMs on
non-original databases might well create difficulties for people using assistive
technology. Thus from this perspective there is certainly an argument in favour
of retaining protection for all databases.
5.1 We assert once again that blind, partially sighted and other print
disabled people are entitled to full and equitable access to databases as much
as to other works.
5.2 We call on the Commission to ensure that these rights are promoted when
deciding what steps to take following the current Evaluation of the Database
Directive.
5.3 On balance, we favour:
i) Retention of a Database Directive with amendments to allow for
exceptions equivalent to those in Articles 5.3(b) and 5.1 of the Information
Society Directive, and
provisions to accommodate the needs of people using assistive technology, along
the lines of Article 6.4.1 of the Information Society Directive.
ii) a consequent direction to member states to remove any current exclusion of
databases from relevant copyright exceptions in their national legislation.
5.4 If other considerations lead to the revocation of the sui generis right, we
urge:
i) that original databases be brought explicitly within the fold of copyright
protection at European and national level; and
ii) that DG Internal Market and other Directorates-General renew efforts on a
broader front to ensure that digital rights management schemes and the TPMs they
often contain do not develop in a way counter to the interests of consumers in
general and blind and partially sighted consumers in particular.
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