Copyright and Publishing
In today's world, full participation in education, employment, culture and the general life of society can only be achieved if one is able to read the same material as others, at the same time and at no additional cost.
The "Right to Read" is set out in various texts:
- United Nations Universal Declaration on Human Rights
Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 27 (i) : Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
- The same principles are echoed in the UN Convention on the Rights of the Child.
- Article 30.3 of the UN International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities refers specifically to copyright, while the broader issue of access to information crops up in several places.
Yet blind and partially sighted people are often denied this fundamental right as the great majority of publications remain unavailable in large print, audio, braille or any other format accessible to blind or partially sighted people.
What we do
Along with the World Blind Union, we work to remove all barriers to our right to read, whether these barriers are legal, technological or economic. The EBU Copyright and Publishing Working Group seeks to influence legislators and rights holders to this end.
In addition, EBU legislative database provides information on copyright legislation in several European countries and compares these with the UN Convention.
Copyright when misused, can pose a serious barrier to blind and partially sighted people wishing to access information, as permission to reproduce in accessible formats can be delayed or denied. New forms of copy protection and digital rights management compound this problem. See Digital Rights Management and people with sight loss, an article submitted by EBU to the Newsletter of the Indicare project, 2006
Partnership in publishing: Digital technology offers us the opportunity to use the same source files to create a range of formats. This means there is enormous potential for the integration of "mainstream" and "specialist" publishing. This would allow new business models which would lead to:
- more titles becoming available ;
- publication in accessible formats at or close to the date of original publication ;
- the prospect of a revenue stream for the author and publisher.
EBU closely collaborates with the Federation of European Publishers, academics and accessible format producers. Amongst others, it has supported the work of the now completed EUAIN project.
The WIPO treaty campaign blog - the fight to end the book famine !
Update on the EU Council's negotiations on the ratification of the Marrakesh Treaty by Jessica Schroeder, 09/12/2015
On the 27th of June 2013 more than 280 million blind people in the world could finally celebrate a firm acknowledgement of their right to read by the UN World Intellectual Property Organization (WIPO), concluding a Treaty on copyright for the visual impaired and print disabled. The “Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities” adopted in Marrakesh establishes legal fundamental grounds for access to literature by empowering authorized entities to convert inaccessible commercially available books into formats which are accessible for vision impaired and print disabled users without the obligation to request the permission of its copyright holders. The treaty sets the legal frame for needed modifications in national copyright regimes to implement legal copyright exemptions for WIPO contracting members to enable authorized entities to share their accessible book collections across national borders with other entities and with blind, low vision and print disabled individuals. This is the first intellectual property treaty benefitting the public interest rather than the interests of rights holders, and closed nearly five years of hard negotiations by the WBU with the active support of the EBU team and in collaboration with other NGOs.
Currently, copyright law is a national jurisdiction which has the effect of preventing blind organizations from sharing books with neighboring countries, thus causing considerable unnecessary duplication of production of books in accessible formats. The treaty will considerably increase the availability of accessible books all over the world and support the mitigation of the predominant book famine. Currently only 5% of all published books in the developed countries and less than 1% in the developing countries are ever produced in accessible formats - such as braille, large print and audio – that visually impaired people and print disabled people need for equal reading enjoyment. The Marrakesh Treaty will enter into force three months after its ratification by 20 countries. While a range of countries such as India, Mexico, El Salvador, Argentina, Paraguay, Mali and others have already ratified the Marrakesh Treaty, some EU member countries show no urgency in doing so. The Copyright Unit of the European Commission presented a proposal to the Council in October 2014 which authorizes the European Union to ratify the Marrakesh Treaty on behalf of all EU member states. Consequently all EU members would be bound to practically implement the legal specifications of the treaty in their own countries, by accepting the exclusive competence of the EU in establishing the legal prerequisites in EU copyright and the common commercial policy. The EU explained its entitlement to exclusive competence by stating that the provisions of the treaty such as copyright exemptions and cross border exchange fall within the scope of EU law. The EU Society Information Directive establishes a legal frame for the harmonization of EU copyright and the Treaty of the Functioning on the EU lays down the regulations for cross border exchange of goods.
14 months after the Commission had tabled its proposal the Council has still failed to reach an agreement on EU's ratification of the Marrakesh Treaty, although the legal services of EU Commission, Council and European Parliament have insisted on the clarity of exclusive EU competence which is supported by ample European Court jurisprudence.
In May 2015 the European Commission proposed a compromise that would respect the sovereignty of individual EU member states to ratify the Marrakesh Treaty while accepting the principle of EU legal competence. While 21 EU member states have expressed their consent to the proposed compromise, which would allow a swift ratification of the Marrakesh Treaty, seven EU member states led by Germany and Italy have rejected the compromise and are forming a blocking minority which stalemates the ongoing ratification negotiations. The German Government is using as an excuse for opposing EU ratification false and discredited claims that this is not exclusive EU competence. If Germany changed its negative position, the “blocking minority” in the Council would probably collapse. This calls for political pressure on a political level in Berlin. To date very few people in the German Government and the Parliament (Bundestag) know anything about Germany´s blocking of the Treaty by using very dubious and totally unsubstantiated arguments: that it is not EU competence, that we need to change German copyright law first and that we need a new EU Directive first. All legal experts have told us the contrary. Very obviously this is a deceitful political ploy that needs to be exposed. Italy is using the same arguments. They would rather like to suspend the ratification negotiations and concentrate on the legislative work in content.
So far the opponents of Marrakesh Treaty ratification under EU exclusive competence have not publicly revealed their opinion nor released any public proposals which would prompt them to accede to EU's treaty ratification. At a plenary debate of the European Parliament numerous MEPs from various political parties have expressed their dismay about the procrastination of the Council's ratification negotiations. Many demanded a concrete time-table for ratification and rejected placing the Marrakesh Treaty ratification and implementation within the general copyright debate currently underway in EU institutions. MEPs like Enrico Gasbarra (S&D, IT), Rosa Estaràs Ferragut (EPP, ES), Max Andersson (Greens/EFA, SE), Julia Reda (Greens/EFA, DE) and Joseph Weidenholzer (S&D, AT) underpinned the delay of ratification as a clear infringement of the right to accessible information, culture and equal participation in education enshrined in the UN Convention on the Rights of Persons with Disabilities. They urged Council and Commission to stop squabbling and in-fighting and reach a common solution indicating its consensus to strive for a swift ratification.
In an public event sponsored by tremendous supportive MEPs like Dieter-Lebrecht Koch (EPP, DE), Enrico Gasbarra (S&D, IT), Juan Carlos Girauta Vidal (ALDE, ES), Max Andersson (Greens/EFA, SE) and co-organized by EBU, WBU and TACD and attended by officials from the Copyright Unit, MEPs and commission members Jasmin Battista ( Digital Single Market, Andrus Ansip's team) and Anna Herold (Digital Economy and Society, Günther Oettinger's team), affirmed their continuous commitment to achieve timely Marrakesh Treaty ratification. On the initiative of Green's Max Andersson, an information session was conducted to brief MEPs about the need for a prompt ratification of the Marrakesh Treaty.
In the last few weeks both the Legal Affairs Committee and the Petitions Committee have responded positively to the requests of the European Blind Union. Both have decided to send a letter via Martin Schulz, the European Parliament President, to the Luxembourg Presidency of the Council and to Donald Tusk, permanent President of the European Council, (with copy to Member States), requesting immediate ratification of the Treaty.
On 26th of October the Petitions Committee sent a letter to the permanent representative of the current Luxembourgish Presidency to request his opinion on the subject and urge his Presidency to seek for a swift solution in this conflict.
Meanwhile the European Commission has sent a legal consultation to the European Court of Justice (ECJ) to determine whether the Marrakesh Treaty should or should not be ratified under EU's exclusive competence. The reason the Commission finally sent the consultation was to prevent a few individual EU member states from ratifying on their own. The ECJ opinion could take between 9 and 18 months, but this does not prevent the Council of EU Ministers from ratifying the Treaty at any time. The European Parliament legal service has submitted to the ECJ its very clear opinion in favor of EU exclusive competence along the same lines as the Commission and the Council legal services have expressed. It is certain that the ECJ will come to the decision confirming exclusive EU competence.
The Council has repeatedly challenged the European Commission to submit a more concrete proposal prescribing the legislative elements in legally implementing the Marrakesh Treaty requirements into EU legislation. It is expected that the European Commission will release such a proposal by mid of December or beginning of January at the latest, which will be likely in the shape of a directive. This directive will be dealt with apart from the revision of the EU copyright. It should be stressed that this is not at all a pre-requisite for ratification and, if it were necessary, could be done after ratification. It is expected that the approval of a “Marrakesh Directive” will not in any way change the opposition of some member states on the competence issue. Nevertheless, EBU, WBU and all involved stakeholders must be vigilant about the content of this proposal to make sure it has the most favorable interpretation of the Treaty.
WIPO accessible book treaty- Do EU negotiators know what blind people need better than EBU does? By Dan Pescod, 27/02/2013
Following the succesful negotiaons for a binding treaty in Marrakesh, read Dan Pescod's summary of the treaty and its implications on the WBU site.
Visitors to this site will know that blind and partially sighted people suffer a “book famine” in which only between one and seven per cent of books are ever published in accessible formats such as Braille, large print and audio.
The world's governments are considering a proposal for global treaty at the World Intellectual Property Organisation (WIPO) which would allow many more blind people to read books. Copyright law currently stops blind people's charities from sharing their libraries of accessible format books across national borders, to help end the ‘book famine' they face. The proposed ‘Books for the Blind' treaty would remove this copyright barrier.
This five year campaign is now coming to a conclusion, since the final treaty negotiations will end this June 28th 2013 after a ten day “Diplomatic Conference” in Marrakech, Morocco.
After much EBU campaigning and support from the European Parliament, the EU Council and Commission agreed last year to back a binding WIPO treaty.
So far so good.
However, the question still remains as to whether the EU negotiators will go to Marrakech and push for a treaty that really would be “fit for purpose” and allow the sending of accessible books across international borders without bureaucracy and caveats. So far, their track record does not encourage hope. Almost every time we have asked for the EU to negotiate to keep (or remove) vital clauses from the draft treaty text, they have failed to do so.
Therefore, back in March, EBU President Wolfgang Angermann wrote to Internal Market Commissioner Michel Barnier, asking him for reassurances on two vital areas of the draft treaty text. Read the full letter here word, (620ko).
The first issue was the EU ‘s insistence that the treaty should require blind people's organisations wanting to send accessible books to other countries to first check whether those books were “commercially available” in the receiving country, in the format requested, at a “reasonable price”.
The EU's attachment to this requirement is driven by the publisher lobby, rather than by a desire to increase access to books for blind people.
Though publishers usually do not sell accessible books to blind people, they still want the reassurance that should they start to do so, there is no way the treaty could allow “competition” with a book they are selling in an accessible format. This, bear in mind, is despite the draft treaty requiring that any books made available by blind people's organisations would have to be provided on a not-for-profit basis. It also misses the fact that people almost always prefer the “mainstream” to charity, and that blind people would therefore buy a book that was accessible to them rather than get it –once transcribed- from a blind person's organisation.
The practical effect of this “check the commercial availability” requirement that the EU holds so dear would be that blind person's organisations would simply not use the treaty to send books to people that need them in other countries at all. Why? Well firstly due to the bureaucracy of checking something that would be difficult if not impossible to verify fully. Secondly, because of a fear that even if they DID try to check “commercial availability”, a blind person's organisation failing to “spot” a commercially available accessible book in the country to which they wanted to send a book using the treaty could be sued.
The second issue we asked the Commission about in our letter was the possibility the treaty permitting the direct sending of a book to a blind individual in another country.
We know that the treaty must allow this in order to significantly improve access for blind people. The Commission and Council, however, have been pushing to remove this possibility from the treaty. They want all books to be distributed under the treaty via third parties such as blind people's organisations in the receiving country rather than from a blind person's organisation in one country directly to a blind individual in another.
The fact is, in many countries blind people's organisations do not have the capacity to act as “middleman” to receive accessible books and redistribute to blind people. The only practical way to get a book to a blind person in many developing countries especially would be for an organisation like Bookshare, or like mine, RNIB in the UK, to send it to them directly. The great thing is that modern technology makes this direct sending possible. It could be done speedily and safely- using the internet to send the book and to establish secure passwords and verify that the user is a bona fide blind person.
Wolfgang's letter therefore urged the Commission to accept that the treaty allow BOTH distribution to overseas organisations AND to individuals. In that way we could apply whichever model worked best in a given situation.
On the 16th May we received a response from Commissioner Barnier (word 30 ko).
Despite our arguments, the Commissioner tells us that EU Member States see the “commercial availability” checks
“as the best possible incentive for publishers themselves to put the special format books in the market thereby eliminating book famine in the most expedient way.”
Barnier goes on to say
“I understand your concern relates to the burden that the determination of the commercial availability could impose on the organisations serving the blind and wanting to send the special formats across borders. The Commission negotiators have been discussing this with our major negotiating partners and are exploring possible solutions to avoid any unnecessary “red tape” for the organisations serving the blind.”
It is frustrating to be told that this requirement would be good for blind people. We have repeatedly explained to the Commission that it would not work. Publishers who decide to sell accessible books in the market will find many willing blind customers, irrespective of this law. They do not need a (very questionable) “incentive” in this treaty to start publishing mainstream accessible books. And in any case, this treaty is not about “incentivising” publishers. Copyright exceptions are supposed to ensure the public good, rather than be used to either undermine or indeed “incentivise” business. This argument should not be used by the Commission / Member States as an excuse for putting into the treaty provisions that would render it unworkable for us.
One the second point, delivery to individuals, Barnier's letter perhaps gives us a little more hope. Well, perhaps. He says:
“The EU Member States consider that distribution between the relevant organisations (in the exporting and importing country) is the best way forward as the organisations in the importing country are the best placed to check whether the person requiring the books is a visually impaired person. At the same time, discussions have shown concerns including from those countries where such organisations may simply not exist. This is a genuine concern and we are ready to look for solutions and engage constructively in this discussion which unfortunately did not take place at the last round of negotiations.”
However, even in countries where a blind person wishes to receive an accessible book using this treaty, and where there is a blind person's organisation, the best and most practical solution might still be for the accessible book to be sent directly to the individual, rather than via the blind person's organisation and then on to the individual. For a start, it would almost certainly be quicker to send the book directly. Also, as I mentioned above, there are some countries where the blind person's organisation would be too small or have too few resources redistribute books received from another country to blind individuals.
In short, the treaty must be worded to ensure maximum access for blind people, which is after all its stated purpose. It must not be hedged with caveats about the existence of blind people's organisations in a given country, or about unfeasible checks for the possible “commercial availability” of a book, and so on.
On Tuesday 21st May, in its Plenary session, the European Parliament held a debate with questions to the Commissioner and Council about the treaty. The two issues above were given prominent airing, and over 20 MEPs urged the EU negotiators to negotiate the type of treaty EBU is calling for.
It was good that Commissioner Barnier agreed in the debate with our aspiration for the treaty to “avoid bureaucracy”. Sadly, however, the Commissioner again backed the inclusion in the treaty of concepts which would inevitably require burdensome bureaucracy. He again defended the inclusion of “commercial availability” checks in the treaty as an “incentive” for publishers.
Strangely, the Commissioner also told MEPs that a treaty requiring that all books pass through an intermediary in the country receiving them, before being sent on to blind individuals, would be “more efficient” than direct sending to individuals. “A to B to C” is more “efficient” than “A to B”, according to the Commissioner.
As I write, after five years of campaigning, there are now less than five weeks of negotiations left to agree the treaty.
If the Commission and Member States are serious about this treaty helping to solve the book famine, then now is the time for them to stop telling us that they know what would work in practice better than we do. Who better to advise them on what would work in practice than the European Blind Union and the World Blind Union?
It is not enough for the Commission and Member States to tell us they want a simple and effective treaty that works for us. They have to negotiate for such a thing, and time is running out for them to do so.