It has taken years of hard work to get to the brink of concluding a workable treaty. It would be a shame at this late stage if we settled for something which did not do the job. We will not have another chance in our lifetimes to improve it!
WHY THE WIPO TREATY MUST NOT HAVE A “COMMERCIAL AVAILABILITY CHECK” REQUIREMENT IN ARTICLES D AND E
Some negotiators have argued that the treaty should require blind people's organisations wanting to send accessible books to other countries to first check whether those books were “commercially available” in the receiving country, in the format requested, under “reasonable terms.”
Support for this requirement is driven by the publisher lobby and diverts focus from increasing access to books for blind people.
Even though publishers very rarely sell accessible books to blind people, they still want the reassurance that should they start to do so, there is no way the treaty could allow “competition” with a book they are selling in an accessible format. Negotiators should bear in mind that the draft treaty requires that any books made available by blind people's organisations must be provided on a not-for-profit basis. It also misses the fact that people almost always prefer the “mainstream” to charity, and that blind people would therefore buy a book that was accessible to them off the shelf rather than get it –once transcribed- from a blind person's organisation.
The practical effect of this “check the commercial availability” requirement would be that blind person's organisations would simply not use the treaty to send books to people that need them in other countries if there was any doubt at all that the works in question were available commercially in the particular formats requested. A treaty with mandatory commercial availability clauses would do this by:
· Creating the bureaucracy of checking something that would be difficult if not impossible to verify fully.
· Creating the “chilling effect” that comes from blind organisations fearing that they would be sued, even if they DID try to check “commercial availability”, were they to fail to “spot” a commercially available accessible book in the country to which they wanted to send a book using the treaty.
In more detail, here are some of the more practical problems that such “commercial availability” clauses would have to meet.
- It is hard to check books availability in your own country (ISBN is not always updated, same with Legal Deposit, etc.).
- It's nearly impossible to check availability in other countries (what, where and how to check?).
- The fact that it appears on an ISBN search does not imply that it is available
– It may have been when published, but it may not be available any more. Publication does not guarantee availability.
- Limited time availability of some works. If ever commercially available they will probably be distributed in small numbers.
- Limited distribution by small publishers.
- How can an “authorised entity” exporting to a large number of countries check, on a book by book basis, which countries are entitled to receive it and which are not?
- Now, multiply this for the many different accessible formats that can be made available in the market. How can anybody check that a book is available in EPUB format in Argentina, but not in Braille, and then in Braille in Uruguay, but not on DAISY, but it is also available as EPUB, just as in Mexico?
- Availability is not a permanent state. How can we check when a book has stopped being available in a given country? That would force us to check for each book served every time we send it over.
- This would render all digital libraries of accessible works unusable in practice.
- If it’s available on Amazon for download or purchase from anywhere in the world, does it mean it’s available worldwide?
What about Article C; domestic copyright exceptions?
WBU maintains that any “commercial availability” checks referenced in Article C should:
· Not be mandatory on states parties
· Be written in such a way that the national exception does not prevent the making and provision of accessible formats for beneficiaries in a different country (for export)
Finally, an additional problem with proposed language requiring commercial availability is that the concept of “reasonable terms” includes “reasonable time.” This would set up a nebulous and vague standard regarding how long a publisher reasonably has to make a work commercially available in a particular accessible format. Is one week reasonable, one month, one year? It is the position of the WBU that the only reasonable time is the same time. Blind and print disabled individuals should not be forced to accept a second class standard and get access to published works after their sighted peers.
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