1.1 The European Blind Union welcomes the opportunity to
comment on the Commission’s review of the acquis communautaires in the field of
copyright and related rights.
1.2 The European Blind Union is the regional representation of the World
Blind Union. We have members in all European Union member states and beyond. We
were actively involved in discussions with the Commission, Parliament and
Council during the passage of the Information Society Directive, and regularly
contribute to consultations and discussions on any policy area that affects
blind and partially sighted people.
1.3 We make below comments on four aspects of the present legal
framework, in each case quoting in reference the appropriate paragraph of the
Commission working document.
1.4 We have also taken the opportunity to draw attention to two other
aspects of the Information Society Directive, not directly related to the
current review but requiring early attention.
2.1 The present situation, under which exceptions formulated
under the provisions of Article 5.3.b cannot cover databases, is a serious flaw
in the present regime. Many creative publications may be considered as databases
- ranging from encyclopaedias to classified telephone directories. The European
Parliament and Council have accepted, by including Article 5.3.b in the
Information Society Directive, that there is a sound case for people with
reading related disabilities to benefit from exceptions to copyright in the case
of literary, artistic and dramatic works. The case is no less convincing when
applied to databases.
2.2 Were international treaties ever to be extended to non-original
databases as well as to original ones, the case would be even stronger.
2.3 Already, however, we believe that this inconsistency constitutes the
most pressing need for realignment of the present acquis so that people with
reading related disabilities may enjoy equitable access to all
copyright-protected works. We agree with the suggestion in the Communication
that it is inadequate to rely on possible interpretations of the wording of the
Database Directive, and far preferable to make a specific adjustment to it.
3.1 We support the extension of the provisions of Article 5.1 of the
Information Society Directive to other directives, and in particular to the
Database Directive.
3.2 Although Article 5.1 of the Information Society directive was
envisaged primarily as a way of protecting those engaged in the transmission of
copyright-protected material, it has a potential secondary application.
Intermediate files are created in the course of producing braille, large print
or audio versions of published material. These are not passed to the end user,
but may be deemed “copies”.
3.3 If well-drafted exceptions to copyright exist in a particular
jurisdiction, this may be of academic interest only. However, the protection of
transient copies will be particularly important if:
a) the drafters of an exception have failed to foresee this issue, or
b) exceptions do not exist and the production of accessible formats
depends on the granting of permission.
3.4 As noted above, exceptions in the Information Society directive
cannot currently be applied to databases. If the exceptions allowed under
Article 5.3.b of the Information Society Directive are incorporated in the
Database Directive, as we recommend, it will be equally valuable to align the
provisions of Article 5.1.
4.1 If the provisions relating to technological protection measures found in Article 6 of the Information Society Directive are to be extended to other directives, it is essential that guarantees for the beneficiaries of exceptions, such as those for people with reading-related disabilities, be extended as well. It is not acceptable for an exception granted by law to be obstructed by technology.
5.1 The current provisions of the Lending and Rental Rights Directive appear to make it difficult if not impossible to extend Public Lending Right to audio or other “non-print” books. We support the extension of Public Lending Right to other formats, as we support any move which acknowledges that all formats are equally valid and that print is in no way “superior” to braille, audio or other formats. Equally, the Public Lending Right, financed from the public purse, is a more satisfactory way of compensating rights holders for loans from public libraries than any licensing scheme funded by charges to those libraries themselves.
6.1 The European Blind Union has two further concerns about the Information Society Directive which are not covered by the Commission document. It may be held that these fall outside the review of the acquis and belong more properly to the regular reviews of the Information society Directive. Nonetheless, we mention them here because it may be wise in the overall review of the legal framework to take account of any implications these issues have for other directives.
7.1 Exceptions for the benefit of people with a
reading-related disability are essentially different from other exceptions
permitted by international conventions in general and the Information Society
Directive in particular. Rather than simply authorising re-use, they permit the
necessary modification of the way in which content is presented.
7.2 Facilities for producing formats such as braille, large print or
digital audio are still relatively scarce, and often dependent on charitable
funds or social subvention. Production of modified material is usually
relatively expensive, and as a result there is an immense shortage throughout
the European Union of titles in accessible formats. In the UK, for example, it
has been shown that fewer than 5% of published titles become available in
accessible formats. When they do become available, it is invariably later than
the original publication.
7.3 It is therefore in the interests of people with a reading related
disability to foster the easy passage between jurisdictions of material thus
modified. In this way, duplication of effort is minimised and scarce resources
put to the most effective use.
7.4 The World Intellectual Property Organisation (WIPO) has recognised
this. It will include in the latest iteration of its “Draft Law, produced under
the auspices of its Cooperation for Development programme, a recommendation that
exceptions of this nature should include the right to import from other
jurisdictions where appropriate exceptions also exist.
7.5 Pursuant to this, it would be highly desirable for member states of
the European Union to add clauses relating to import rights to their copyright
exceptions. To do so, however, they may feel the need for such measures to be
explicitly allowed for in the Community framework.
7.6 We therefore urge the Commission to look into the scope for such a
change.
8.1 Not all member states have yet introduced exceptions
under Article 5.3.b, and without such exceptions the provisions of Article 6.4.1
cannot assist disabled people impeded by technological protection measures.
Moreover, there is considerable danger that we will eventually have exceptions
in twenty-five different forms, and twenty-five solutions to the problems posed
by technological protection measures. This will hinder the exchange of material
between jurisdictions. It will also create difficulties for rights holders. They
may have to face a multiplicity of voluntary agreements and legal requirements
8.2 We would urge the Commission to examine the scope for introducing
some measure of obligation and consistency in this area.
9.1 We would be happy to discuss any of these issues further
with the Commission. For further information or clarification, please in the
first instance contact David Mann, Chair, EBU Copyright Working
Group, david.mann@rnib.org.uk, Tel +44 28 9032 9373.
DM/EBU October 2004