Dear Commissioner Barnier,
Thank you for your letter dated 16th December, in which you respond to the call from the European Blind Union, now signed by 100 Members of the European Parliament, for the European Commission and Member States to support a binding treaty at WIPO to improve access to copyrighted works for blind and other print disabled people.
I am heartened to read in your letter that the European Commission “fully shares the concerns relative to the needs and urgency for the international community to address the problems faced by print disabled persons in accessing works specially formatted for them to read”.
However, as well as supporting this aim, we would like to see the Commission support the best means to achieve it.
We were therefore disappointed to see that the Commission insists that a non-binding, “soft” “WIPO Recommendation” would be the best sort of international legal instrument to provide for the transfer of accessible books between countries.
We do not believe this to be the case. In our opinion the “soft” solution you suggest would be ineffective, expensive, and administratively burdensome. It would be of limited benefit for print disabled people.
We are also sceptical about your suggestion that the “EU Memorandum of Understanding (MoU)” should serve as a model for adoption outside of the EU.
In the two pages that follow I explain these concerns and address the points made in your letter in more detail.
Please rest assured that the European Blind Union remains keen to continue working with the European Commission, Member States and Parliament to ensure that the EU helps to end the “book famine”.
Coordinator European Blind Union Right to Read Campaign
In more detail: EBU’s response to Commission Barnier’s letter of 16th December 2010.
I would like to address a couple of misapprehensions in your letter.
Firstly, you state that:
“The proposed [ by the EU] “Joint Recommendation” not only encourages Member States that do not yet have exceptions to copyright for the benefit of persons with print disabilities to introduce such an exception but also sets out a mechanism for the cross-border transfer of works in accessible formats which is, as you rightly indicate, the crux of the problem. In that sense, the European approach goes further than the suggested Treaty in solving a concrete problem.”
On the subject of national copyright exceptions, the EU proposal for a “joint recommendation” merely “encourages” exceptions. The treaty drafted by WBU and proposed by Brazil, Ecuador, Paraguay and Mexico would require national exceptions, so in this sense it goes further than the EU.
Secondly, while it is true that the EU joint recommendation proposal suggests the manner in which the cross-border transfer of works in accessible formats could happen, the manner of such a transfer was not the problem we went to WIPO to solve.
The barrier we were looking to overcome by proposing a treaty was a legal one. Currently copyright law does not allow such a transfer, by whichever practical means one might envisage. The treaty would provide an exception to copyright law in order to allow such a transfer. Different countries and systems would necessarily have their own ways of carrying out the transfer once the law permitted it. The common barrier they all face, though, is that copyright law either prevents cross-border transfer of accessible works or is silent on the matter.
The EU proposal says that, even when use of a legal instrument or “exception” is needed to ensure cross-border transfer of accessible works, we would still need to ask a publisher for an export license. (As per Article 4 of the EU “Joint Recommendation” proposal).
Since recourse to a copyright exception to make a work accessible typically happens when publishers have failed to provide a license, the “Joint Recommendation” requirement for an export license in these circumstances cannot be a workable solution.
We believe therefore that the EU proposal at WIPO cannot be used to claim that the EU “goes further than the suggested Treaty in solving a concrete problem”.
Your letter goes on to advocate that the “EU Memorandum of Understanding (MoU)” is a model that should be extended “beyond the confines of EU Member States.”
We would like to point out, though, that the implementation of the “Trusted Intermediaries” (TI) system, as defined by the EU MOU, is very complex. It will be very difficult and costly even for big- let alone smaller- organisations to meet the TI requirements.
At the time of writing a small number of blind people’s organisations are considering the complex licensing agreements, “TI guidelines” and so on which have come out of negotiations with rights holders in the EU “Stakeholder Dialogue” and WIPO “Stakeholder Platform”.
As we stated when we met you in October, we are concerned that the demands of these proposed agreements might prove too onerous to be taken up even by the larger blind people’s organisations such as RNIB in the UK and ONCE in Spain. Given these fears, one wonders to what extent it will prove feasible to extend the model beyond the EU, as you propose in your letter.
Often those who oppose proper binding copyright exceptions say that we should favour voluntary licenses instead of binding and appropriate legislation. They say that this is a “speedier” solution.
We do not agree. The idea of achieving “quick” or “immediate” results through these initiatives suits those who lobby against new copyright exceptions, but is misleading.
WBU /EBU has always said that it wants to work with rights holders on licensing agreements, and we are doing so, as demonstrated by our participation in the EU and WIPO Platforms. However, after a year of the EU Stakeholder Dialogue and some two years after the WIPO Stakeholder Platform began, these projects have not yet exchanged a single book.
In any case, even were these voluntary agreements to work- speedily or slowly- they do not negate the need for an effective legal safety net for the many cases where they will not apply.
I would therefore urge the Commission rethink its approach to this matter at WIPO, in favour of a strong, binding WIPO treaty. Such a move would signal that the EU is really serious about the right to read that is enshrined in the UN Convention on the Rights of Persons with Disabilities.