More more Marrakesh briefing notes: /r2r/marrakesh
June 17, 2013
A handful of countries (the UK, Canada, Australia, Singapore and Argentina) have legislation restricting the use of exemptions where a commercial version of the work is available in an accessible format. While there is little information as to how these provisions work, some reports suggest the provisions are largely ignored in practice, because they create very burdensome obligations on parties, and the non-profit organizations using the exceptions are seen as responsible entities. There is plenty of evidence that it will be very costly and difficult to implement the commercial availability restriction cross-border, because this requires extensive information and analysis regarding prices of works in various formats and editions in every geographic export market, and analysis and evaluation of the interoperability of those formats.
The 2012 U.S. DMCA rule
In three rule-making proceedings under the DMCA (2003, 2006 and 2009), the US Copyright Office linked the right to circumvent technical protection measures to the commercial availability of accessible formats. In 2012, the Copyright Office eliminated the commercial availability link, because the requirement would create burdens on blind persons in terms of having to acquire multiple player/reader devices, and the lack of interoperability limited the functionality of the devices in important ways.
KEI Recommendations for Marrakesh
The KEI recommendations on this issue are as follows:
1. KEI acknowledges that because some countries have laws that limit exceptions when there is commercial availability, it will be permissive in the treaty. But the manner in which it is addressed will be important. KEI recommends against language that will effectively promote this practice.
2. KEI opposes commercial availability as a requirement for exports.
3. KEI suggests there be an option for countries to only provide a restriction on commercial availability when the exceptions are used by for profit entities. This is the approach that was taken in the original WBU proposal.
4. In the article C(4), KEI suggests the addition of the following text: “The notification shall indicate if the restriction on commercial availability applies to for profit entities only, or to both for profit and non-profit entities.”
5. KEI would like interoperability text added to C(4)
6. KEI likes this part of the agreed statement that is currently a footnote to C(4)
“Agreed Statement on Article C(4): It is understood that a commercial availability requirement does not prejudge whether an exception or limitation under this Article is consistent with the three-step test.”
4. A Member State/Contracting Party may confine limitations or exceptions under this Article to works which, in the particular accessible format, cannot be obtained commercially under reasonable terms for beneficiary persons in that market. Any Contracting Party availing itself of this possibility shall so declare in a notification deposited with the Director General of WIPO at the time of ratification of, acceptance or accession to this Treaty or at any time thereafter. 1
Add: “The notification shall indicate if the restriction on commercial availability applies to for profit entities only, or to both for profit and non-profit entities.
“Such notification shall include an explanation as regards the requirements that the accessible format be interoperable with different devices in order to avoid the costs of owning multiple devices and in order to ensure the full and preferred functionality of reader/players.”
“Any restriction on the use of the exceptions, conditioned on the lack of commercial availability, shall be limited to cases where the the accessible format is interoperable with different devices in order to avoid the costs of owning multiple devices and in order to ensure the full and preferred functionality of reader/players.”
Asma Rehan, The evolution of reasonable pricing language. Marrakesh Note 3.
Krista Cox, The 2012 U.S. Copyright Office decision regarding Technological Protection Measures, including discussion of commercial availability of accessible works. Marrakesh Note 4.