Linking Commercial Availability and Exceptions in the Treaty for Visually Impaired/Persons with Disabilities

It is probably the last chance to sort out the major outstanding issues in the text of the document before the diplomatic conference and if some of these issues are not resolved soon, the diplomatic conference could end without a fruitful conclusion.

One of the most critical issues that remain outstanding is the desire that some government negotiators have to link the use of the treaty provisions or copyright exceptions to commercial unavailability of the work in accessible formats.

The publishing lobby, and consequently the European Union most notably, insist that the exceptions should kick in only when the works in accessible formats are not commercially available at reasonable prices. The definition of "reasonable price for developing countries" as it stands now  "means that the accessible format copy of the work is available at prices that are affordable in that market, taking into account the needs and income disparities of persons who have limited vision and those with print disabilities". The definition of "reasonable price for developed countries" as it stands now "means that the accessible format copy of the work is available at a similar or lower price than the price of the work available to persons without print disabilities in that market." It is be noted that there are a few suggestions for changes of wording of the definition but in effect what this wording means is that exceptions should apply only when the accessible format copies are not available at a reasonable price.

At first glance this seems a perfectly sound proposition. I mean, if sighted people have to buy a book, then why shouldn’t beneficiaries under the Treaty also buy a book in an accessible format if it is available at a reasonable price?

The problems with this crop up if you look deeper. The linkage between commercial availability and the exceptions appear at two places in the Treaty.  In Article C which deals with national exceptions the following is proposed: "A Member State/Contracting Party may confine limitations or exceptions under this Article to published works which, in the particular accessible format, cannot be obtained commercially under reasonable terms for beneficiary persons in that market".

In Article D which deals with exceptions for export of accessible format copies the following two alternatives are proposed:

Alternative A: [The Member State/Contracting Party may limit said distribution or making available of published works which, in the applicable accessible format, cannot be otherwise obtained within a reasonable time and at a reasonable price, in the country of importation].

Alternative B: [A Member State/Contracting Party should/shall(/may) prohibit said distribution or making available to published works where the exporting authorized entity, prior to making available or distribution, knew or should have known that a copy in the particular accessible format could have been obtained through the distribution channels customary to the beneficiary persons, (under reasonable terms, including) at prices that take account of the needs and incomes of beneficiary persons in the country of importation, (as well as the cost of producing and distributing the work)].

Concerns with linking commercial availability and exceptions

Impossibility of verifying commercial availability with any degree of certainty
Imagine that the recently introduced Indian copyright exceptions for persons with disabilities stated that the exceptions are not available to published works which, in the particular accessible format, can be obtained commercially under reasonable terms (luckily this is not the case currently). What would this mean practically? It would mean that every person with disability who benefits from the exception and every NGO working for the person with disability would firstly have to conduct an in-depth due diligence to see whether the book can be purchased firstly anywhere in the country in an accessible format.

Secondly, if the due diligence reveals that a book in the relevant accessible format can be purchased the question will be whether the price of the accessible format copy is "affordable in India, taking into account the needs and income disparities of persons who have limited vision and those with print disabilities". As you can see these are impossible mountains to climb for persons with disabilities and largely underfunded NGOs who provide services to persons with disabilities.

The situation gets much more complicated when it comes to exceptions relating to cross border exchange. Imagine that the United Kingdom introduces a provision in their copyright law allowing the Royal National Institute of Blind People to export accessible format copies to people with visual impairment in Chennai but only after verifying that the accessible format copy cannot be otherwise obtained within a reasonable time and at a reasonable price. Remember that "reasonable price" in India means that the accessible format copy of the work is available at prices that are affordable in that market, taking into account the needs and income disparities of persons who have limited vision and those with print disabilities. How can the RNIB based in the UK even begin to undertake this exercise, which would require it to:

• Check whether the accessible format copy is available in India; then
• Understand the needs and income disparities of those with limited vision and print disabilities; and then
• Check the cost of the accessible format copy and determine whether the cost of the accessible format copy is reasonable based on the above point.

It will be impossible for RNIB to do this.

In addition to the above there is the added concern that linking commercial availability and exceptions as mentioned in Article C (national exceptions) will lead to countries such as India being put under pressure from the European Union and the United States to amend our Copyright Act and linking our exceptions to commercial availability. The same applies to countries that want to introduce copyright exceptions after the Treaty.

As you can see, the linking of commercial available and exceptions while in theory is sound, in practice it will be impossible to comply with thereby killing all effectiveness of the Treaty.

Watch this space for more updates on the Treaty as they happen.