If you can´t beat them, join them and try to spoil it

 

 

European Commission and the right to read:

If you can´t beat them, join them and try to spoil it

 

Last week in Geneva at WIPO the EU was dragged kicking and screaming into a concrete textual debate on the creation of a legal international instrument for the Visually Impaired for an exception and limitation on copyright. Under heavy pressure and criticism from the European Parliament and the European Blind Union, the European Commission, represented by French Internal Market Commissioner Michel Barnier, has been forced to abandon its previous outright rejection of a legally binding treaty and now has launched a new strategy. The EU, represented by the Commission has made a series of obstructive and destructive amendments to the working text of the World Intellectual Property Organization with the double objective of undermining the whole purpose of a Treaty and provoking an endless debate in order to filibuster any practical solution for millions of print-disabled persons. The European Blind Union and the World Blind Union strongly reject most of the EU´s significant amendments for going against the needs of millions of print-disabled persons.

 

Considering that the whole point of the Treaty for the Visually Impaired is to establish an “exception and limitation on copyright” for certain uses and taking into account that the very title of this area of negotiations at WIPO are called “Exceptions and Limitations”, it is pretty startling that one of the first EU “de-constructive” amendments proposes to suppress entirely from the text “copyright exceptions and limitations” and to substitute it with “appropriate measures”! Also in this uncooperative sense the EU also proposes to eliminate from the text “ to provide the necessary flexibilities… to open the door to licensing alternatives.”.

 

When it comes to defining the “trusted entities” that would be responsible for distributing reading material to the print disabled, the EU propose to radically narrow the scope to only organizations whose “primary mission” is serving the print-disabled. This would eliminate public libraries, schools and universities, as well as severely limiting access to books in poor countries of the South where there a very few or no strong organizations whose “primary mission” is to serve the visually impaired.

 

The EU especially fails when it comes to social sensitivity to blind persons of the South. The EU proposes to define a “reasonable price for developing countries” as “the accessible format copy of the work is available at a similar or lower price that the price of the work available to persons without print disabilities in that market,..” Considering that an “E-book” could cost between 15 and 25 Euro, this EU proposal will not be of much use for the disabled persons of Guatemala or South Africa.

 

The EU also attemps to sink the copyright exception flagship with this proposed torpedo: eliminating the phrase “ without the authorization of the rightholders”. Obviously, if blind persons NGOs´ must negotiate permission book by book with rightsholders there is really no point of having an international legal instrument at all.

 

Where the EU reveals its shocking ignorance of what kind of formats disabled persons need is when it proposes an ammendment that establishes that no exception to copyright will apply if their is “a work commercially available”. The EU ignores the fact that many commercially available audio works are either not technically accessible, are not formatted to be useful for academic study, are not available at public libraries or are simply not affordable to most visually impaired persons. The EU suggests that the Spanish blind persons organization ONCE cannot share its formatted works with blind persons of Paraguay if those works are in some way or form “commercially available” even if the practicality of that “availability” is useless.

 

Other EU amendments (see below with comments by World Blind Union) all go in the same direction of blocking and spoiling any meaningful progress toward the real-life access to reading material on the part of the print-disabled.

 

Why is the EU taking this obtuse position? Why is the European Commission ignoring the will of the European Parliament? Why is the EU making unrealistic, draconian demands on an international legal instrument when the copyright exceptions already existing in most EU members states are far more flexible and simple?

 

The answer is clear: the EU has assumed the fundamentalist and ideological positions of the copyright lobby that refuses to come out of its deep bunker for a fair and pragmatic solution that facilitates the right to read of visually impaired persons around the world.

 

 

 

 

 

TREATY FOR THE VISUALLY IMPAIRED (EU AMENDMENTS)

Comments by World Blind Union (WBU) in brackets

0.13. In the thirteenth paragraph, “copyright exceptions and limitations” should be replaced by “appropriate measures” (European Union).

[NO- this instrument deals specifically with E&L. Other measures should be dealt with in the appropriate places]

0.17. The seventeenth paragraph should read “Taking into account the importance of increasing the number and range of accessible format works available to visually impaired persons/persons with print disabilities in the world, and to ensure full and equal access to information and communication for persons who are visually impaired or have a print disability in order to support their full and effective participation in society on an equal basis with others, and to ensure the opportunity to develop and utilize their creative, artistic and intellectual potential, for their own benefit and for the enrichment of society,” (European Union).

[Eliminates language on “to provide the necessary minimum flexibilities…. , so as to open to door to licensing alternatives.” This is not appropriate in a law providing exceptions.]

……………………………….

LEGAL TEXT:

A.09 As to the definition of “authorized entity”, first paragraph, the phrase “activities” should be replaced by “primary missions” (European Union, United States of America).

[NO to “primary” – would exclude many schools, universities and other bona fide organisations for whom accessible format provision is vital work but not a “primary” part of what they do]

A.12 As to the definition of “authorized entity”, the second paragraph should read “an authorized entity maintains rules and procedures to establish the bona fide nature of persons with print disabilities that they serve.” (European Union).

[The authorized entity should decide what rules and procedures it uses to establish the bona fide nature of persons with print disabilities.]

A.16 As to the definition of “authorized entity”, the third paragraph should have and additional sentence that reads “Member States/Contracting parties should encourage rightholders and beneficiary persons to cooperate and participate in authorized entities.” (European Union).

[NO! This is not a definition- why would it sit here?] ……………………………….COMMENTS ON ART. A OF LEGAL TEXT

A.21 The definition of “reasonable price for developing countries” should be replaced by “means that the accessible format copy of the work is available at a similar or lower price than the price of the work available to persons without print disabilities in that market, taking into account the needs and income disparities of persons who have limited vision and those with print disabilities in that market.” (European Union).

[No, it should be affordable in developing countries.] A.22 Further discussions and debates are essential on the complex issue of “reasonable price” as

it is not mature (European Union). • [Each Member State should have the flexibility to determine what is reasonable price

in that Member State.] A.23 The definition of “copyright” should be further discussed (European Union).

[Asper22] COMMENTS ON ART. C OF LEGAL TEXT:

C.04 The phrase in Paragraph (1) “to facilitate the availability of works in accessible formats” significantly broadens the aim of the instrument and has broad implications. It should be preceded by the phrase “or any other equally effective measure” (European Union).

[No- the instrument is specifically intended to facilitate the availability of works in accessible formats. That’s what this is all about.]

C.06 Paragraph (2)(a) should read “Authorized entities shall be permitted to make an accessible format copy of a work, obtain from another authorized entity a work in accessible format, and supply such a copy to a beneficiary person by any means, including by non-commercial lending or by electronic communication by wire or wireless means, and undertake any intermediate steps to achieve those objectives, when all of the following conditions are met:” (European Union).

[NO. This adds RH authorization into an instrument we need for cases where we have been unable to get help from RH. Getting rid of the “without the authorization of the RH” contradicts the essence of an exception, that permission is not needed! The words “without seeking/asking for the authorization of the RH” could be used as the other option might seem to imply an “unauthorized distribution”.]

C.08 In Paragraph (3), delete reference to three-step test “that is limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.” A separate Article Ebis is proposed in this connection (European Union).

[The EU proposal for Ebis appears unhelpful, in our opinion, and would need some work. We believe it should say, that the provisions of the treaty are without prejudice

to other flexibilities countries have in the Berne, the WCT or the TRIPS, all of which are important, and including such things as the first sale doctrine]

C.10 Paragraph (4) should read “the Member State/Contracting Party shall limit the exceptions or limitations provided for in this article to published works which, in an applicable special format, cannot be otherwise obtained within a reasonable time and at a reasonable price” (European Union).

The word “otherwise” should be retained in this paragraph (Brazil, United States of America). Exceptions should not depend on the existence of commercially available works, as in this case the question is defending a fundamental human right (Ecuador).

[This is very important to WBU. Any restriction saying that the exception should not apply when the work is commercially available must be on the strict proviso that the book is available at the same time and price, in the format needed by the individual requesting it. A commercial audio book can’t be used by a deaf blind person, and a commercially available large print book can’t be used by a blind person. Then, if the commercially available audio book or large print book is not affordable or available from a library, it is not available to the individual either.]

COMMENTS ON ART. D OF LEGAL TEXT:

D.05 In Paragraph (2)(a), delete “without the authorization of the rightholder”

(European Union). • [ Totally unacceptable to WBU]

D.06 In Paragraph (2)(b), delete “without the authorization of the rightholder”

(European Union). • [Totally unacceptable to WBU]

D.09 In Paragraph (3), delete reference to three-step test “that is limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.” A separate Article Ebis is proposed in this connection (European Union).

[As stated above, we believe that the draft Ebis is problematic]

D.11 It is proposed to add a new paragraph 3bis that reads “The Member State/Contracting Party should/shall limit the exceptions or limitations provided for in this article to published works which, in an applicable special format, cannot be otherwise obtained within a reasonable time and at a reasonable price in the country of importation.” (European Union).

[“Should/shall” to be replaced with “may”. Member States should have the flexibility to decide this, especially developing countries. Special” needs to be changed to “accessible”.]

COMMENTS ON ART. E OF LEGAL TEXT:

E.02 Delete the phrase “without the copyright rights holder’s authorization.” (European Union, United States of America). Article E should allow Member States to mirror the flexibility of their exception in relation to imports. That phrase could mean, for example, that in other articles where it is not specified, there is no need the right holders’ authorization. This article requires further discussion, in particular regarding the notion of importation in relation to copyright (European Union).

[WBU strongly against deletion suggested by EU. This is a text for a future law on copyright exceptions; not a licensing scheme]

 

 

 

3 Responses to this post.

  1. Posted by john e miller on 13.12.11 at 10:03 am

    I will not attempt to respond point-by-point to yours and the WBU’s analysis. The WBU and binding TVI treaty proponents have pushed the limits of qualified beneficiaries, acceptable (meaning any) format, and those who might be authorized to make an accessible copy to the point that +/- 10% of the world’s population would be entitled to free copies of any copyrighted material … And the IFLA and the libraries in their proposal are trying to extend that to a goodly portion of the remaining 90%.

    Yet you all still wonder why the copyright lobby will resort to any mechanism to delay or stall a treaty… To me it is simple: There are scared out of their wits and see these treaties as undermining THEIR Berne Treaty ‘exclusive right’ to reproduction and distribution no matter how many UN Conventions you choose to cite.

    I still think that the strongest method you have to opposing these contravening tactics by M. Barnier and his compatriots and negotiating from a position of strength is an action to use existing copyright laws to their fullest — much like with labor action slow-downs when all the unions have to do is follow the rules to the letter. Take the offensive and let them tell you why such actions are not in compliance with existing law.

    But the WBU and its compatriots still insist that it is their Human Rights not only to make accessible copies but get those copies shared amongst all the beneficiaries world-wide for free. The notion of getting everything for free does not appear in any UN Conventions on Disabilities or Human Rights … That is a contention which must be negotiated and in that area the disabled community may not be getting the best possible representation

  2. Posted by john e miller on 13.12.11 at 10:03 am

    Corollary: If You Can’t Sue Them, Get Them To Sue You.

    I have been reviewing the last 4 WIPO SCCR interventions by the US National Federation of the Blind (NFB). They have employed the words ‘urge’, ‘call upon’, ‘encouraged’, ‘reiterate the need’, etc. If you know about the NFB in the USA, they do not use those words: They are a highly litigious organization and will sue you if they have any justifiable legal grounds. They have sued under various Federal and state-level statutes the US Social Security Administration, United Airlines, the Target Department Store chain, Amazon.com, Florida State University, etc. Their lead outside attorney said at the NFB 2008 Convention in Dallas, TX:

    “… When a company believes that its existence in cyber-space immunizes it from the ADA (Americans with Disabilities Act), but it provides services to schools and universities, then we’ll sue the schools and universities under the (US) Rehab Act and let the businesses know if they want to discriminate (then) we can destroy their business.”

    http://www.browngold.com/videos/2008NFB_Convention.html (my transcription of the video)

    However in the case of the WIPO Treaty there is no one to sue. No one is breaking any law by preserving the status quo and you certainly cannot sue WIPO which is only the facilitator on behalf of its Member Country delegations.

    I wrote the following:

    “We maintain that EXISTING laws in both UK and USA allow for such exportation of Copyrighted material even though there has never been any definitive legal interpretation … So, the ‘Salt March’, as with Gandhi’s March-to-the-Sea in 1930 to challenge the Salt Laws, will challenge such copyright measures: We will assume our interpretation as below is correct and it will be up-to-THEM to prove otherwise.”

    http://www.scribd.com/doc/39712041/Braille-Salt-March

    Mr. Jim Fruchterman, CEO of Bookshare.org, wrote on his Beneblog regarding whether the US Copyright Office believes that export of ‘Specialized Format’ materials is permissible under US Copyright Law:

    “(We need) reliable confidence that exporting and importing are legal today; not ‘try it and see if you get sued.'”

    To which I responded with the Comment:

    “Try-it-and-see-if-you-get-sued is how things often work in the legal arena and takes someone or some organization willing to put themselves at-risk to establish a test case or precedent… and thereby force those who might oppose a binding Treaty to offer some clear rationale for its opposition and not just stall, stall, and stall some more.”

    benetech.blogspot.com/2011/05/benetech-presidents-update.html

    But as it turns out the US Copyright Office *had* gone on record in response to the WIPO SCCR Questionnaire on Copyright Exemptions and Limitations.

    In April 2010 the Staff Attorney at Knowledge Ecology International (KEI) wrote on KEIonline.org that the US Copyright Office had provided a ‘Misleading’ answer to the WIPO SCCR Questionnaire at Question 71 as to whether accessible renditions of Copyrighted materials can be exported to other countries. The Office supplied an answer which said that, under certain conditions, a Section 121 ‘Authorized Entity’ is exempt from export restrictions under US Copyright Act Section 602. The KEI attorney provided a counter argument which contained the following assertion:

    “The ambiguity also works against the interests of the visually impaired because the US is able to suggest that a treaty for the visually impaired is not necessary because US law allows for importation and exportation of accessible works. The ambiguity provides enough room for the US to argue that, at least from the perspective of those in the US, sufficient limitations and exceptions to copyright and related rights exist to protect accessibility of works for the visually impaired.”

    “Essentially, the US disclaims the need for a strong treaty by pointing to one possible theory of Section 602(a)(3) while ignoring other strong interpretations.”

    http://keionline.org/node/1110

    I provided 3 comments to the Blog where I suggested that the KEI response misses the point: That an ‘Authorized Entity’ is already exempt from Section 106 restrictions which is all that any entity, upon being deemed exempt from Section 602 restrictions, would benefit therein..

    It has taken until now that — after following for 2 weeks the real-time written transcript for SCCR23 which being in Thailand oftentimes ran well into the early hours — I finally realized what is the possible suggestion in the US Copyright Office’s response whether that was their explicit intent or not:

    The US Copyright Office might indeed be saying that — at least as far as ‘Authorized Entity’ NGOs based in the USA are concerned and maybe as well for those potential importing countries especially in the developing world — you had better take advantage of any and all provisions available under existing US and other WIPO Member Country Copyright Law because —

    — That may end up being all-you-are-going-to-ever-get

    I ended my third of 3 Comments entitled “Exportation and ‘Implied Authority’ under Section 121” to the above KEI Blog with the following:

    “There may then be a way under exportation provisions of current and existing US Copyright Law to serve the interests of the visually impaired absent any binding International Treaty — maybe just not the way the US Copyright Office might have envisioned.”

    … Or maybe the way the original WIPO SCCR 18/5 WBU-sponsored ‘binding’ Treaty proponents envisioned either.

    BTW see my comment at –

    http://www.ip-watch.org/weblog/2011/12/21/ip-experts-focus-on-3-step-test-in-copyright-debate-way-forward/#comment-4873194

  3. Posted by john e miller on 13.12.11 at 10:03 am

    From the above original post:

    “The answer is clear: the EU has assumed the fundamentalist and ideological positions of the copyright lobby that refuses to come out of its deep bunker for a fair and pragmatic solution that facilitates the right to read of visually impaired persons around the world.”

    So,when someone refuses to come out of a deep bunker, one of the ways to get them out is to smoke them out. At least one way to do that I mentioned above: Start an action to release as many books in accessible format as possible adhering to the exiting copyright laws of several countries. Force the rights-holders into legal action to show cause why such activities under existing statute should cease and desist.

    Or rather you would prefer to go into name-and-shame mode (as per your SCCR23 intervention) against persons who have thick hides and are well paid to endure being named-and-shamed.

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