European Year of People with Disabilities

• Membership list
  
  
• Terms of Reference
  
  
• Copyright and Visually Impaired People
  
  
• EBU Board's Statement, February 2002
  
  
• EBU Board's Resolution, January 2000
  
  
• Copyright Directive : Commentary on Final Text, July 2001
  
  

Membership list, 1999 - 2003

EBU Copyright Working Group - Terms of Reference

Board's Resolution

Commentary on Final Text
by David Mann
Chair, EBU Copyright Working Group

1. The European Copyright Directive has now been adopted and was published in the Official Journal on 22nd June, 2001. This enables the European Union to ratify the copyright treaties adopted in 1996 by the World Intellectual Property Organisation (WIPO). Member states have 18 months from the date of publication to implement the mandatory parts of the directive in their national legislation. Many aspects of the directive still leave ample scope for national diversity.
   
   
2. The full English language version of the text can be found at :
   http://www.europa.eu.int/information_society/topics/multi/digital_rights/doc/directive_copyright_en.pdf
   
   
3. Although the European Blind Union did not obtain mandatory exceptions for blind and partially sighted people, we do have a strong recital (no. 43) stressing the importance of accessible formats, backing up the provisions of Article 5.3.b. We do have provision for mandatory exceptions for "transient" copies, which should include those produced as part of the process of creating braille, large print or digital audio files (Recital 33 and article 5.1.). Article 6.4. states in its first sub-paragraph that, in the absence of voluntary agreements, member states must take steps to ensure that the beneficiaries of certain exceptions, including any for disabled people, are given the means of circumventing technological protection measures. This is extremely important, since many rights management schemes are not compatible with screen reading technology. The fourth sub-paragraph of Article 6.4. seeks to limit the scope of this provision, and Recital 53, in turn, limits the extent of 6.4 sub-paragraph 4. Thus we have some confusion and plenty of scope for interpretation. However, the intention of the eventual compromise was that only "pay-on-demand" or "pay as you view" video subscription services would be exempt from the provisions of Article 6.4 sub-paragraph 1.
   
   
4. All in all, I believe we have a text which is much "better" from our perspective than it might have been. EBU, both alone and in partnership, was a significant element in the balance of arguments that led to this result.
   
   
5. We now move to the stage of national implementation, with which the EBU Copyright Working Group would be happy to assist and advise. Even though exceptions for disabled people are not obligatory, this would be an excellent opportunity to introduce them. Moreover, please remember that the article on "transient" copies (Article 5.1.) is mandatory, and we will want to ensure that national interpretation explicitly covers our needs. Furthermore, if exceptions are already in place for blind and partially sighted people in national legislation, or are being introduced now, the requirement to provide a means of circumventing technological protection measures are also mandatory.
   
   
6. I give below extracts from the Directive that are of particular relevance to us. The exact wording of these texts can be very significant, and I would recommend that you go direct to the Official Journal if you require the precise text in other languages, rather than relying on any other translation of the English given here.
   
   David Mann
   Chair, EBU Copyright Working Group
   
   

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   Exceptions for Disabled People

   Recital 43
   It is in any case important for the Member States to adopt all necessary measures to facilitate access to works by persons suffering from a disability which constitutes an obstacle to the use of the works themselves, and to pay particular attention to accessible formats.
   
   Article 5.3.
   Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases :
   
   (b) uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability ;
   
   Article 5.4.
   Where the Member States may provide for an exception or limitation to the right of reproduction pursuant to paragraphs 2 and 3, they may provide similarly for an exception or limitation to the right of distribution as referred to in Article 4 to the extent justified by the purpose of the authorised act of reproduction.
   
   Article 5.5.
   The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.
   
   

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   Exceptions for "temporary" acts of reproduction

   Recital 33
   The exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter to be made. The acts of reproduction concerned should have no separate economic value on their own. To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information. A use should be considered lawful where it is authorised by the rightholder or not restricted by law.
   
   Article 5.1.
   Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable :
   (a) a transmission in a network between third parties by an intermediary, or
   (b) a lawful use
   of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2.
   
   

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   Technological Protection Measures

   Article 6.4. (first sub-paragraph)
   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.
   
   Article 6.4. (fourth sub-paragraph)
   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.
   
   Recital 53
   The protection of technological measures should ensure a secure environment for the provision of inter-active on-demand services in such a way that members of the public may access works or other subject-matter from a place and at a time individually chosen by them. Where such services are governed by contractual arrangements, the first and second sub-paragraphs of Article 6(4) should not apply. Non-interactive forms of on-line use should remain subject to those previsions.
   
   
   
   
   
   
   
   
   
   
   

   COPYRIGHT AND VISUALLY IMPAIRED PEOPLE

   Copyright is a key issue for blind and partially sighted people as it can, when incorrectly applied, seriously impede our right to read the same material as everyone else. Copyright is in itself a perfectly just concept, and EBU respects the rights of intellectual property owners to earn a just reward for their labours. Our aim is not to overthrow copyright but to balance other rights against it.
   
   Legislation in nine of the fifteen member states of the European Union completely overlooks the needs of print disabled people. Any legal alternative format version of a text (braille, large print, audio, electronic) can be produced in those countries only with the explicit permission of the rights holder, and on the terms they dictate. At best this leads to delays, at worst to outright refusals on the part of rights holders. It also imposes a huge administrative burden on voluntary agencies.
   
   The practical implications of this include the following scenarios.
   
   - Your college tutor asks you to read a particular book by the beginning of next term, or a journal article by the beginning of next week. If your college transcription unit, or any voluntary agency, has to wait while copyright permission is granted, you will miss your deadline. This could be true even if rights administrators responded promptly to enquiries. Sadly, they often do not.
   
   - Everyone is talking about the newest novel from a best-selling author. It is piled high at every station bookstall. By the time it has appeared in braille, people are talking about the sequel.
   
   Of course, limited facilities and limited funding also restrict our right to read. Nonetheless, copyright causes delays of its own.
   
   Our Demands
   
   EBU strives for a situation where the rights of blind and partially sighted people are given the same recognition as those of copyright owners. This would mean that the transferring of a document into an alternative format, that is to say an accessible format, would not be seen as an infringement of copyright. Transferring, or "trans-formatting" would not be copying, so it would not need permission. Thus, there would be no delay while awaiting permission and no possible denial of disabled people's rights. Any originals obtained in order to produce the alternative format would be paid for at the standard price. Authors, publishers or other rightsowners would be acknowledged. Steps would be taken to prevent any abuse by blind people passing on copies in their possession, although it is unlikely that such copies would be of any commercial interest.
   
   EBU calls for legislation which enshrines the right of individuals and agencies, working on a non-profit basis, to transfer material into alternative formats without any legal permission or payment. This regime must be mirrored at a European and international level if the potential of the Information Society for blind and partially sighted people is to be fully realised. Equally, technological anti-piracy measures must be applied in such a way as not to hamper the right of blind people to read.
   
   Voluntary agreements can prove a useful short-term solution to some of our problems, but we do not believe they are a substitute for a fair and explicit legal framework.
   
   How have we managed so far ?
   
   Where the agency has been working on a non-profit basis, producing braille or audio on special carriers, authorisation has usually been given, sooner or later, free or for a nominal charge, but there are often delays and restrictions. Moreover, the legend "reproduced by kind permission of the publishers..." at the start of many a braille or audio book, indicated two basic assumptions. Firstly, the visually impaired reader had no right of access to the text and was reading it due only to the benevolence of the author or publisher. Secondly, perhaps less consciously, this statement made it clear that the braille or audio version was a reproduction, hence a copy as well as a modification of the original. The book was not simply produced in braille, it was re-produced.
   
   The Information Age
   
   The Information revolution offers tremendous potential advantages to visually impaired people and those working on their behalf. Disks and the Internet will not replace braille, large print or audio, any more than they will replace conventional print. On the contrary, they make the production of those formats easier and faster, while increasing and diversifying the routes to information available to those with a reading disability.
   
   The electronic age does not mean that thought or creativity have changed, merely the means of conveying them. Hence, the rights of creators, and the rights of print disabled people, have not changed either. They simply need to be codified in a fresh light.
   
   Who suffers when copyright is inappropriately applied ?
   
   Approximately 7.4 million people throughout the European Union have a significant visual impairment. They are not a homogenous group. Some are totally blind, many more have some useful vision. The age of onset of disability, the amount of rehabilitation received and the facilities at the individual's disposal will influence, among other things, the ways in which they are able to read.
   
   However, they all share enormous problems in accessing information. There is an acute shortage of information in a format which they can access. This is also a major barrier to full participation in society. As parents, consumers, employers, theatre-goers, employees, students or tourists, visually impaired people need the information that most other people takes for granted.
   
   This exclusion can be overcome. The means exist for information to be transferred into braille or large print or on to an audio carrier such as tape or compact disk, or for it to be accessed in an electronic format using a variety of forms of adaptive technology.
   
   Time and cost hamper these activities. So can copyright barriers. Visually impaired people and agencies working on their behalf require acceptance of their rights under copyright legislation to avoid costly and time-consuming negotiations with content providers.
   
   Principles
   
   EBU has drawn up a set of principles on which to base its campaign for improved copyright legislation. These aim to strike a fair balance between two sets of rights.
   
   EBU's policies are based on the following principles :
   1. The owners of intellectual property are entitled to fair remuneration for the exploitation of their work.
      
      
   2. Print disabled people are entitled to read, watch or listen to the same material (information, education, entertainment) as their fellow citizens, in whatever format they find most conducive to full appreciation.
      
      
   3. Print disabled people are entitled to access all material via their preferred format or medium without undue delay.
      
      
   4. Print disabled people are entitled to access all material via their preferred format or medium at no greater cost than to other people.
      
      
   5. Rights holders should not be entitled to prevent or hinder access to their intellectual property by print disabled people once the work is available to others, in whatever format it exists.
      
      
   6. Print disabled people or organisations working on their behalf should not have to pay for permission to transform material into accessible formats when the full work is not provided on the same terms by the rights holder.
      
      
   7. Print disabled people and organisations working on their behalf have a responsibility to prevent commercial exploitation while ensuring that print disabled people can access material conveniently and economically.
   
   
   EBU, March 1999
   Minor amendments June 2001
   
   For further details please contact :
   
   David Mann, Chair, EBU Expert Working Group on Copyright
   RNIB
   40 Linenhall Street
   Belfast BT2 8BA (Northern Ireland)
   Tel : +44 28 9032 9373, Fax : +44 28 9043 9118
   E-mail : david.mann@rnib.org.uk
   
   
   
   
   
   

   STATEMENT ENDORSED BY THE BOARD OF EBU, FEBRUARY 2002

   At its meeting in Denmark on 12th May 2001, the European Blind Union agreed to recommend to the Liaison Commission and to the Board that EBU adopt the following set of criteria as a means of judging proposals for legislation in relation to copyright and visually impaired people. These criteria are to be seen as complementary to the position paper adopted by the Board in 1998.
   
   "We seek legislation which :
   
   a) asserts visually impaired people's right to equitable access to all published information ;
   
   b) enshrines rights, and does not merely create vehicles for permission or licensing ;
   
   c) is not tied to particular formats or particular technologies ;
   
   d) is future proof ;
   
   e) focuses on the individual end-user, not the format ;
   
   f) takes account of the fact that alternative formats may be legitimately produced by a wide range of organisations and by individuals ;
   
   g) acknowledges that access may be sought at or from home, school, workplace, library or any other context.
   
   h) acknowledges that the creation of alternative format versions from lawfully acquired originals on a non-profit basis, with controlled distribution amongst visually impaired people, does not constitute an infringement of copyright and thus requires no permission."