You can never judge a book by its cover, especially if it’s a very thin one with a very thick cover with the title: “Have no fear, your local publisher is here”.
After months of complex negotiations facilitated by the European Commission, EU Internal Market Commissioner presented a Memorandum of Understanding (MOU) that has the objective of improving the access to reading material for the visually impaired and other print disabled people. The MOU has been signed by European Publishers along with other right holders, the European Blind Union and the European Dyslexic Association.
Under the pressure of a public campaign in favour of a international legally binding Treaty to be adopted by the World Intellectual Property Organization (WIPO), European publishers and writers needed to show that they really cared about the “right to read” of the blind and other disabled persons despite their aggressive rejection of the treaty proposal.
Both the European Commission and the Publishers have been able to display their good will and sensitivity concerning the “book famine” that millions of people around the world suffer without having to accept a legal exception to copyright as proposed in the Treaty of the World Blind Union at WIPO.
The main motivation for the European Commission and for the publishers behind this voluntary understanding is an effort to prove: “we don’t need any new EU or International legal instruments based on an exception and limitation of copyright because our stakeholder initiatives are faster and more effective – besides, any legal flexibility will fuel more piracy.” The “negative” example of the possible exercise of an exception to copyright given by the publishers at the European Parliament presentation on Wednesday was the hypothetical, god forbid, shipment of formatted books for the blind from Spain to Guatemala that could end up in “massive piracy to normal readers”!
The theory is that this voluntary stakeholders agreement solves most of the problems of sending works formatted for the print disabled across the borders of countries and greatly increases accessibility. The objective is to ensure that works converted into Braille or another accessible format, are available through a network of “Trusted Intermediaries” that are NGOs or non-profit organizations. Nevertheless, the reality of the MOU is far the self-congratulatory claims heard from publishers and is actually much more limited and modest than what a legally binding treaty at WIPO would provide.
1. ONLY A FRAMEWORK, NOT OPERATIONAL. This agreement as stands will not permit the shipment of even one book from one member state to another. In order for the MOU to be implemented each of the 27 member states must first negotiate and sign a national agreement between their own national stakeholders and their publishers. Until that time this agreement is only a framework document of understanding without any practical effects. A new time-consuming complex task now must begin in each European country to replicate and contextualize the agreement to different realities.
2. ONLY WITHIN THE EU, NOT OUTSIDE. The agreement does nothing to allow the shipment of formatted works outside the EU. For example, it would still be illegal for books in Spanish to be sent from Spain to Argentina, or works in English to be shipped from the UK to South Africa.
3. AFFECTS FEW BOOKS. Since most EU member states do not speak the same language the amount of books that would be favoured by cross-border agreements is quite limited. It could be useful especially for the export of formatted books from the UK.
4. IT IS NOT A BLANKET LICENCE BUT COULD REQUIRE TEDIOUS BOOK BY BOOK REQUESTS RELEASE OF RIGHTS.
5. VERY STRINGENT REQUIREMENTS FOR THE STATUS OF TRUSTED INTERMEDIARIES. Some Eastern European countries could have problems in fulfilling the strict criteria and most countries in south would not have trusted intermediaries.
In summary, the stakeholder agreement or MOU is an interesting forum of dialogue that could facilitate some technical and legal issues in favour of accessibility but in no way can it be seen as a substitute for clear legal measures that establish a framework of legal certainty on a global level. In any case, it should be added that all parties involved admit that the recent willingness to negotiate on the part of rights-holders and publishers has been the result of the Treaty for the Visually Impaired being presented at WIPO in May of 2009.
David Hammerstein, TACD
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