Undermining the copyright exceptions for the blind

The WIPO “Stakeholder Platform,” an endeavor by rightholder organizations that came about in response to the proposal of the World Blind Union Treaty, seeks to engage in voluntary agreements and licensing deals to make works accessible to the visually impaired. Although the “Stakeholder Platform” appears to be a positive measure on its face, these voluntary agreements may actually impair, rather enhance, the ability of the blind to gain access to books and other works. Although collaboration with rightholders to produce accessible format works is a positive step in ensuring better access to knowledge for the visually impaired, it is important to ensure that such cooperation does not limit the rights granted to the blind.

The EU Directive on Copyright and Related Rights directs Member States to provide for measures to ensure that rightholders make their works available to beneficiaries of an exception to or limitation, such as the visually impaired. However, the exceptions and limitations available apply only absent other voluntary measures. Although voluntary agreements between rightholders and those who benefit from copyright exceptions and limitations are important mechanisms in improving access to knowledge, specialist organizations and agencies must still be allowed to make and share accessible works in order to better serve the visually impaired.

Maria Martin-Prat, reportedly the new head of union for copyright for the European Commission, appears to support voluntary measures over application of laws that would automatically allow the visually impaired to benefit from exceptions and limitations to copyright. In her paper and presentation to the ALAI Congress in 2001, Maria Martin-Prat discussed Article 6(4) of the EU Directive. The following text of the EU Directive is taken directly from the presentation of the slides; the underlining reflects her own emphasis:

Slide 1:

Notwithstanding the legal protection provided for in paragraph 1, in the absence of voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned, Member States shall take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law in accordance with Article 5(2)(a), 2(c), 2(d), 2(e), 3(a), 3(b) or 3(e) the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject-matter concerned.

Slide 2:

A Member State may also take such measures in respect of a beneficiary of an exception or limitation provided for in accordance with Article 5(2)(b), unless reproduction for private use has already been made possible by rightholders to the extent necessary to benefit from the exception or limitation concerned and in accordance with the provisions of Article 5(2)(b) and (5), without preventing rightholders from adopting adequate measures regarding the number of reproductions in accordance with these provisions.

Slide 3:

The Provisions of the first and second subparagraphs shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.

These three slides illustrate the restrictions that voluntary agreements place on the blind or others who benefit from the copyright exceptions and limitations contained in the EU Directive. Although Member States are directed to ensure that appropriate measures are taken to ensure that the blind have access to protected works, they need only do so “in the absence of voluntary measures.” Member States may act “unless reproduction for private use has already been made possible by rightholders” or where “agreed contractual terms” do not exist. The plain language of the EU Directive clearly indicates that where voluntary agreements are made, Member States need not provide any other assurances to allow the blind to access works.

These qualifications on the rights to use the copyright exceptions are significant. Where a publisher agrees on licenses to produce these works, those benefiting from the copyright exceptions in the EU Directive could lose their right to access protected works, regardless of how fair or beneficial the licensing terms are. Furthermore, licensing may involve costly, complex negotiations and terms are often subject to change and terms may become increasingly unfavorable to the visually impaired who rely on accessible format works.

Supporting a regime that solely, or even heavily, relies on voluntary measures by rightholders–which, apparently Maria Martin-Prat and the Stakeholder Platform advocate for–would restrict the ability of the blind to exercise copyright exceptions and limitations under the EU Directive.