EBU Position Paper on the legislative proposals of the European Commission concerning the implementation of the Marrakesh Treaty
The European Blind Union (EBU) is the umbrella organisation of the different European self-help organisations of blind and partially sighted people, representing more than 30 million blind and partially sighted citizens in Europe, including Retina International. EBU has intensively contributed to the genesis and adoption of the Marrakesh Treaty, which aims at facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.
In industrialised countries, less than 5 % of published works are available in accessible formats. This means that blind and partially sighted people do not have access to equal participation in education, vocation, politics, culture and leisure. Their rights to freedom of opinion and expression and to information are violated, since blind and partially sighted people can only exercise these rights on an equal basis with others if the information – including all published works in all forms – is available in an accessible format. To prevent discrimination, it is fundamental to arrange for a guarantee for equal access to published works for people with disabilities. According to UN-CRPD article 4, paragraph 1a, the European Union (EU) is bound
“to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention”.
More precisely, article 30, paragraph 3 of UN-CRPD says:
“States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials.”
The Marrakesh Treaty provides a substantial framework for the applicatory implementation of the rights of persons with disabilities declared in the UN-CRPD.
EBU therefore warmly welcomes the initiative of the European Commission to implement the Marrakesh Treaty.
In the context of the examination of the State Report regarding the implementation of the UN-CRPD, the European Union was asked to advance the prompt ratification and implementation of the Marrakesh Treaty on European level. EBU assumes that the European Commission will do its best to enforce the swift ratification of the Marrakesh Treaty and to promote its legal implementation with due diligence and on its own initiative.
Comments on the legislative proposals
Choice of the instruments
EBU would welcome the merge of the two legislative proposals into one legislative act. To ensure a consistent implementation of the Marrakesh Treaty within the EU member states and to avoid legal uncertainty and divergent implementation, EBU sees the need for a joint regulation, which covers import and export regimes as well as the application of copyright exceptions in the European and national copyright laws.
Comments on the legislative drafts
Proposal for a regulation of the European Parliament and of the Council on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject-matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print disabled
Article 2 Definitions
The term “accessible format copy” used in the proposal corresponds to the definition of the original text of the Marrakesh Treaty.
In the context of applicatory implementation, EBU would like to substantiate the definition. This would help authorized entities and publishers, who wish to know, whether their published works are accessible.
Together with other book publishers, the Danish Library and Expertise Centre for people with print disabilities have compiled a study on ten accessibility criteria of works of literature. With the help of this study, the Swiss library for blind, partially sighted and print disabled people has developed guidelines to check the overall accessibility of literature works. A summary of the most relevant criteria:
- Access to the book: A partially sighted or print disabled person can find the book by him-/herself, physically in a shelf or a store or digitally on the internet or on another digital medium.
- Information about the book: All information about the book, which is contained in a regular-print book (information about the content, the author, the publisher etc.), must be available to the partially sighted or print disabled person.
- Access to the content: The content of a regular-print book is readable by a partially sighted or print disabled person. Therefore, it must be converted to a format, which permits the understanding of the content when reading.
- Integrity of the content: Relevant information visually shown in the book (drawings, pictures, maps, figures etc.) is comprehensible for partially sighted persons. Relevant information in foot notes, in references or similar text elements are also readable.
- Unobstructed access to the book and to its structure: A partially sighted or print disabled person can use the book in the same way as a non-print disabled person would do with a regular-print version of the book. The person can open the book independently and easily skim within the pages to locate the favored content quickly.
Article 5 Obligations of authorised entities
After conversations with copyright holders and publishers, EBU believes that article 5 should be supplemented by an obligation, which mandates authorised entities to establish a publically accessible national database (hub). This database lists all produced accessible format copies, as well as all imported accessible works and their sources of supply and allows all concerned stakeholders to get access to relevant information and prevents legal uncertainties.
Data pooling and cooperation between authorized entities are enshrined in article 9 of the Marrakesh Treaty. Article 9 particularly refers to the obligation of national states to support national authorised entities in the establishment of international cooperation and the cross-border exchange of accessible format copies. In view of this legal obligation, EBU believes that it is vital to urge state parties of the Marrakesh Treaty to provide financial and personal resources to facilitate international cooperation between authorized entities, the prosperity of accessible format copies and the cross-border exchange of these works.
Proposal for a directive of the European Parliament and of the Council on certain permitted uses of works and other subject-matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society
Article 2 definitions
We refer to our comments above and believe it would be helpful to amend the accessibility term in this directive to some operational specifications, which facilitate the production and definition of accessible format copies.
Article 3 permitted uses
EBU is of the opinion that article 3 insufficiently describes the aspect of the public dissemination of accessible format copies for the beneficiaries of the Marrakesh Treaty. Making accessible works publically available means in this context that authorized entities are allowed to provide accessible format copies online - via internet - without requesting the approval of the copyright holder. Article 4 of the Marrakesh Treaty forms the legal base for this vital right. Recital 6 of the directive also refers to the aspect of public availability and online dissemination:
“This Directive should therefore provide for mandatory exceptions to the rights that are harmonised by Union law and are relevant for the uses and works covered by the Marrakesh Treaty. These include in particular the rights of reproduction, communication to the public, making available, distribution and lending, as provided for in Directive 2001/29/EC, Directive 2006/115/EC, and Directive 2009/24/EC, as well as the corresponding rights in Directive 96/9/EC. As the scope of exceptions and limitations required by the Marrakesh Treaty also includes works in audio form, like audiobooks, it is necessary that these exceptions also apply to related rights.”
Obligations of authorised entities
The directive is missing an article, which describes the obligations of authorised entities. EBU proposes to apply the wording of article 5 of the regulation to this directive. This article should also be complemented by article 2 c of the Marrakesh Treaty, which amplifies and substantiates the obligations of authorized entities:
“An authorized entity establishes and follows its own practices:
- to establish that the persons it serves are beneficiary persons;
- to limit to beneficiary persons and/or authorised entities its distribution and making available of accessible format copies;
- to discourage the reproduction, distribution and making available of unauthorised copies; and
- to maintain due care in, and records of, it’s handling of copies of works, while respecting the privacy of beneficiary persons in accordance with Article 8.”
As mentioned in our comments concerning the legislative draft regulation, the directive should also contain a clause, which urges the European Union and EU member states to provide financial and personal support to foster cooperation, the creation of EU databases and the cross-border exchange of accessible format copies within the EU.
Commercial availability of published accessible format copies and compensation schemes for copyright holders
Recital 11 of the directive explains:
“In view of the specific nature of the exception, its targeted scope and the need for legal certainty for its beneficiaries, Member States should not be allowed to impose additional requirements for the application of the exception, such as compensation schemes or the prior verification of the commercial availability of accessible format copies.”
EBU believes that recital 11 needs to be an essential legal binding requirement embedded in an article of this directive to avoid conflicts and legal uncertainties at the expenses of the beneficiaries of the Marrakesh Treaty. A binding requirement prohibiting the prior verification of the commercial availability of accessible format copies establishes a uniform legal framework within the EU and prevents the exercising of numerous legal practices within EU member states. This would inhibit and aggravate the import and export regime of accessible format copies. An authorized entity needs to be legally entitled to decide on its own to produce an accessible format copy of a commercially published work. Blind and partially sighted persons have various needs depending on the symptoms of their impairment, their living situation, their technical skills/requirements and the intended use of the published book.
For example, a blind or partially sighted university student needs to be able to quote from a book, to determine the numbers of the book pages easily, to read references and footnotes and to understand drawings and pictures of the book. This student needs a book indicating the number of the page, descriptions or tactile versions of graphics and tables in an accessible, comprehensible format.
A prior verification of commercially available accessible books by authorised entities is time consuming, unduly uses personal resources and infringes the rights of blind and partially sighted readers as declared in the Marrakesh Treaty. Such a legal restriction would greatly impede an effective access to published works for our constituency.
EBU strongly opposes any efforts of EU member states to introduce legal requirements, which oblige authorised entities to scrutinise the commercial availability of accessible format copies.
EBU would like to point out that authorised entities are naturally interested in establishing collaborations with publishers to maximise the availability of accessible published works for our constituency. Collaborations support the effective use of financial and personal resources and are a key factor for a successful inclusion. Nevertheless, these collaborations need to be fair and mutual; they should be based on legal conflicts and at the expenses of blind and partially sighted readers.