The EU position came out in a proposal for a Joint Recommendation with 9 articles in 11 pages. It is hard to believe but it is worst than the US proposal and it is even worst than nothing. It is an outrageous “roll back” recommendation. It does make clear who’s the boss in the commission. The publishers apparently. Their proposal is bold. Here’s a quick read:
The aim of this Joint Recommendation is to increase the number and range of accessible format works available to citizens with a print disability in the world to the extent that there is no appropriate commercial product on offer. The provisions are predicated on the basis that every Member State should introduce in their national copyright law an exception to the right of reproduction, the right of distribution and the right of making the work available to the public, as defined in Article 8 of the WCT. The exception should cover uses that are directly related to the print disability to the extent required by the specific print disability, and that are of a non-commercial nature.
(p.3)
The aim is to restrict the conditions that would permit to increase the number and the range of accessible format works available. The Joint recommendation is about when “there is no appropriate commercial product on offer.” If a book exist in an audio format but not in a indexable format or searchable format, is it “on offer” to people with disabilities?
Right from the start, the EU limit any application of an exception to non commercial uses which would cetainly exclude anything google books has done since google is not a non commercial actor.
But it gets worst.
The Joint Recommendation fosters a pragmatic approach, recommending a global system of mutual recognition of Trusted Intermediaries in the world. Where Trusted Intermediaries do not yet exist, Member States are encouraged to help establish at least one such body for their territory. (p.3)
Of course the “recommendation” “recommends” a system of trusted intermediaries (but “encourages” member states when it comes to their exceptions). The trusted intermediaries “concept” comes out of private discussions between publishers and representatives of the VIP community. These “dialogues” facilitated by WIPO and at the EU level by the Commission have been organized to undermine the campaign for a treaty or any other form of binding agreement. Publishers defined how far they want to go. Not far. Actually, it would be — for many country –a roll back since publishers have to give their consent and be informed by the users.
Article 1
Definitions(iv) “Trusted Intermediary” is an approved institution whose activities must have the consent of both, persons with a print disability and rights holders such as publishers. Trusted Intermediaries facilitate the production of works in accessible formats, and/or their cross border transfer in a controlled manner.
Trusted Intermediaries should fulfil the following conditions:
– they operate on a not-for-profit basis;
– they register the persons with a print disability they serve;
– they provide specialised services relating to training, education, or adaptive reading or information access needs of persons with a print disability;
– they maintain policies and procedures to establish the bona fide nature of persons with print disabilities that they serve;
– they maintain policies and procedures to ensure full and complete compliance with copyright and data protection laws.If the Trusted Intermediary is a nation-wide network of organisations, all organisations which are members of this network must fulfil all of the above mentioned conditions.
The conditions are spelled out. Organizations such as libraries, schools, hospitals, community centers and others would have to “fulfill all the above mentioned conditions” in order to benefit from the recommendations?
And of course, there are 27 member states. They almost all have some kind of exceptions (to simplify about 6 different kinds). I doubt their concept of trusted intermediaries are all the same. A library in France does not work like a library in the UK. The people they serve, their patrons, are not “evaluated” in similar ways.
The rollback continues in Article 2:
Article 2
Exception for the benefit of persons with a print disability
Member States should provide in their national copyright law for an exception to the right of reproduction, the right of distribution and the right of making the work available to the public, as defined in article 8 of the WCT, for the benefit of persons with a print disability. The exception should cover uses that are directly related to the print disability to the extent required by the specific print disability and that are of a non-commercial nature.
Such exception may only be applied in 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.
We all recognized this last sentence. The three step test. The EU/publishers proposal is conditioning the possible exception on the three step test which is not “useful if you want to increase access” since there is already some ways to importing and exporting that lie outside of the three step test (Article 6, 40 and 44.2 of the TRIPS and parts of Berne). This would narrow permitted exceptions. It is a dangerous roll back.
But there is another push in the direction to restrict and narrow instead of increasing access:
Member States may ensure that the rights holders receive an adequate remuneration for the use of their works covered by the exception. This claim may be exercised through a collective management society.
Some members states do not at this time provide remunerations. Is the EU/publishers’ recommendation just another way to ensure more profit at no cost for the publishing industries?
Finally:
The recommendation is not of application to the extent that there are sufficient and adequate market solutions for persons with a print disability.
How many hours will be wasted at WIPO and other places discussing “sufficient and adequate market solutions”? Right now in developed countries, the VIP get maybe 5% of what is published. The “market failure” is quite clear. But could the publishers tell us (and the EU Commission) what they think is sufficient and adequate rapidly so we can move on?
Article 4
Cross-border transfer of physical works in accessible formats that are produced under a copyright exception
Member States should recognise that if a work is made accessible under an exception provided for in their national legislation for the benefit of persons with a print disability, a copy of that work in an accessible format can be distributed to a Member State that has an exception for the benefit of persons with a print disability or, subject to a specific export license granted by the rights holder, through a Trusted Intermediary into another Member State.
The recommendation awkwardly mixes exception and “specific licence granted by the right holders”. These are two different concepts. An exception is a public law. A license is a private contract. It is reversing the concept in the BEP &M proposal which makes it clear that contract laws (private law) cannot undermine an exceptions.
And then you have more restrictions:
A copy of the work in an accessible format may not be directly distributed to a person with a print disability resident in the latter Member State but must be distributed through a Trusted Intermediary established for that Member State.
Members states are encouraged to change their system. They have to make it more restrictive. If they distribute to individuals (and many do) today, they should stop that and create (if they do not have one) a trusted intermediary approved by the publishers.
Article 5
Cross-border making available to the public of works in accessible formats that are produced under a copyright exception
Member States should recognise that if a work is made available online under an exception provided for in their national legislation for the benefit of persons with a print disability, the work in an accessible format can be made available online, as defined in article 8 of the WCT, to a Member State that has an exception for the benefit of persons with a print disability or, subject to a specific export license granted by the rights holder, through a Trusted Intermediary into another Member State.
The work in an accessible format can only be made available online through a Trusted Intermediary established for that purpose for the Member State where the person with a print disability resides.
This “article” pretends to deal with online distribution. Well, it does in a way. It makes it more problematic than now.
The work in an accessible format can only be made available online through a Trusted Intermediary established for that purpose for the Member State where the person with a print disability resides.
Is the aim of the recommendation to make online distribution an even more highly problematic and regulated activity? Why? How is this “increasing access”?
More hurdles here too:
Article 6
Notice to rights holders regarding the use of their worksIn cases involving the reproduction, distribution and the making available to the public, as defined in article 8 of the WCT, of works in an accessible format for the benefit of persons with a print disability under Articles 4 and 5, the Trusted Intermediaries should provide notice within a reasonable time to the rights holders or to the collective management societies prior to any use of the work. Such notice shall include the following:
i) the name, postal address and relevant telecommunications contact information of the party reproducing, distributing and making available to the public works;
ii) the nature of the use of the works, including the countries where the work is to be distributed and made available to the public and the terms under which the work is to be distributed and made available to the public; and
iii) information regarding his/her right to challenge the use, on the grounds that the uses are not sufficiently restricted to persons with a print disability, or that the use conflicts with a normal exploitation of the work or prejudices his/her legitimate interests.
What? “notice…prior to any use”? This another rollback for the VIP community. The burden is on them again. And it is simply impossible for orphan works. Member states are supposed to get busy making it harder for their population that need more access?
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