Blind Foundation Submission
Ratification of the Marrakesh Treaty
This is the Blind Foundation’s submission on the ratification of the Marrakesh Treaty.
The Blind Foundation has long been an advocate for the Treaty and is prepared to
offer whatever technical advice or other assistance is needed to ensure this most
valuable legislative change is made.
The Blind Foundation is the main provider of rehabilitative, support and advocacy
services for blind and low vision New Zealanders. The Blind Foundation has
approximately 12,000 clients throughout the country.
Our Purpose
To enable people who are blind or have low vision to be self-reliant and live the life
they choose.
Our Vision
Life without limits
Kahore e Mutunga ki te Ora
Four Key Priorities
1.
2.
3.
4.
Independent living
Access for all
Reach more people
Building a Foundation for the future
The Blind Foundation advises government, business and the community on inclusive
standards to ensure that the people we represent can participate and contribute
equally. We have four major contracts with government. We value our relationships
with officials and Ministers. We seek to act as a trusted advisor and specialist on the
blindness sector. We are a long serving and expert provider of services to the sector.
What is the Marrakesh Treaty
The Marrakesh Treaty was adopted in June 2013 by governments around the world
at the World Intellectual Property Organisation (WIPO). The goal of the Treaty is to
help to end the book famine faced by people who are blind, have low vision or are
otherwise print disabled. Currently, only a small percentage of the world’s published
books ever make it into accessible formats. This is partly due to access barriers in
copyright law - something the Treaty helps to remove. It does that in two main ways:
1. By requiring countries that ratify the Treaty to have an exception to domestic
copyright law for people who are blind, have low vision or another print
disability. This means that countries that ratify the Treaty must ensure their
laws allow authorised organisations to make accessible format books without
first asking permission from the holder of copyright (e.g. author or publisher).
In New Zealand, we already have such an exception under Section 69 of the
Copyright Act, and this has served us well, domestically, for twenty years.
2. By allowing for import and export of accessible versions of books and other
copyrighted works, again without copyright holder permission. This will help
to avoid the duplication of transcription efforts in different countries. It also
allows those with larger collections of accessible books to share these with
visually impaired people in countries with fewer resources. This is something
that our current legislation does not allow. It is nonetheless a logical step
forward. A step supported by blindness organisations like the Blind
Foundation and Blind Citizens New Zealand, and also by the publishing and
rights-holders sector in New Zealand.
This cross-industry support exists because only “authorised entities” such as blind
people’s organisations can send accessible books under the Treaty’s terms. This
ensures that copyrighted material is respected and protected. The Treaty allows
accessible books to be imported and received by “authorised entities” or directly by
people who are blind/have low vision or are print disabled.
If countries like New Zealand sign ratify and implement the Treaty, there will be a
huge and positive impact on accessibility for people with print disabilities. It would
promote the domestic production of accessible materials as well as provide access
to books produced elsewhere. This will be important for access to books in
languages that cross national boundaries, such as English and Chinese.
We are asking that Government prioritise the work necessary:
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
for the Ministry of Business, Innovation and Employment to proceed with
domestic Treaty examination
to determine what changes to New Zealand legislation are required to enable
New Zealand to ratify the Treaty.
In discussions we have had so far, we believe that relatively few and minor
amendments to current legislation will be required. We support option three outlined
in the Ministry’s discussion paper.
The benefits to blind and other print-disabled people in New Zealand will be
significant.
The Problem which the Treaty addresses
Only a small percentage of published materials are currently available to people who
are print disabled in formats such as braille, electronic text, audio or large print. We
have come to describe this situation as a “book famine.” This famine is made worse
because it has not been possible to easily exchange accessible books between
countries, owing to different copyright requirements. This has frequently resulted in
authorised entities (such as the Blind Foundation) having to duplicate, for domestic
use, the same content that is readily available overseas. This practice is a waste of
scarce resource that should be directed to increasing the number of accessible
works. The Marrakesh Treaty addresses this problem square-on.
Support from blind and low vision library users.
In early February, the Blind Foundation reached out to clients to gain opinion about
ratifying the Treaty. The response was quick and clear. Of the 653 people who
responded to the survey 100% were supportive of New Zealand ratification. They
told us (74%) that at some point they could not access a book they wanted or
needed to read because it was impossible to obtain it in accessible format. This
included text books required for study. In fact, 41% told us that they had trouble
completing study because they could not access books.
The Blind Foundation received over 1100 comments about the importance of
accessible books in people’s lives. Clients describe access to books as a lifeline, as
intellectual stimulation, as a precursor to success in education and employment and
as a human rights issue. These are snippets of some of their stories.
“I have experienced the annoyance of knowing a book is available in braille in
Australia, but not being allowed to have it sent here because of copyright clearance.
Knowing something has been brailed and not being allowed to read it is frustrating
beyond belief.”
“My daughter is blind and I think she should have the right to access books just as a
child with vision can. This is her only access to reading, she misses out on so much
visually.”
“I work with children who are blind or have vision impairment. It is vitally important
that children have access to as many different reading experiences as possible to
develop appropriate literacy skills. The range of braille or talking books for children is
very, very limited.”
“While I was studying it was common not to access the information I needed in a
timely manner….not being able to access information for research and course
completion was a major reason why I didn’t finish my degree or take up future study.”
“They (books) are my lifeline. I’m old and live in a nursing home. I sit in a chair every
afternoon all afternoon and it would be very lonely without my talking books and
magazines.”
Benefits to New Zealand
Advantages to New Zealand resulting from acceding to the Marrakesh Treaty
include:
•
•
•
•
freeing up trade of accessible works by allowing authorised entities in one
country to send accessible format books directly to authorised entities or
blind individuals in another country;
making access to tertiary education easier for print disabled people who
need to study using text books produced in countries like China, Japan,
the US and elsewhere. Many print disabled people have difficulty in
completing their studies due to difficulties in timely and ready access to
text books and information they need, which may limit their ability to
achieve qualifications and get into employment;
increasing the effectiveness of current government funding, through
existing contracts between the Ministry of Education and the Blind
Foundation, by removing the need for duplication of existing accessible
works. This frees up resource to allow more educational titles to be
available for import and the creation of new accessible works not available
anywhere else;
enabling a more efficient use of funds secured via the charity dollar, since
most accessible content produced in New Zealand is done so by the Blind
Foundation through funds donated by the New Zealand public.
The Treaty ensures authors and publishers also benefit, as the system will not
expose their published works to misuse or distribution to anyone other than the
intended beneficiaries. Both the Publishers’ Association of New Zealand (PANZ) and
Copyright Licensing New Zealand (CLNZ) have indicated that they support the
implementation of the Treaty in New Zealand. They are looking forward to
participating in the process and to building on the success of existing models of cooperation
Moves to ratify the Marrakesh Treaty by New Zealand will also support New
Zealand’s compliance with the United Nations Convention on the Rights of Persons
with Disabilities.
We are asking Government to take steps to ratify the Marrakesh Treaty quickly.
Early ratification will mean that people living in New Zealand experiencing the book
famine can begin to benefit from the advantages of the Treaty.
Ratification Progress So Far (update to Feb 2016) Update from WIPO site
To February 2016:

15 countries have ratified the Treaty – four in the last two months. One of
those 15 is Australia.
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Canada has indicated that it intends to ratify at the earliest opportunity.
President Obama transmitted the Treaty to Congress and urged ratification as
soon as possible.
Because these major book producing countries have either committed themselves,
or are about to ratify means that if New Zealand accedes to the Treaty, we can enjoy
Treaty benefits sooner. The Blind Foundation thinks this is a strong argument for
early ratification.
Conclusion
The Marrakesh Treaty provides a tremendous opportunity for New Zealand on the
world stage. Being one of the first 20 countries to ratify the Treaty would further
reinforce New Zealand’s credentials as a global leader, and as a country committed
to increased access for disabled people.
By prioritising this issue, which is a good news story for all concerned, Government
will send a strong and positive message. For print-disabled New Zealanders this
message heralds a near future in which they have access to a world of published
materials.
The Blind Foundations response to the 38 questions posed in the MBIE consultation
document are overleaf.
Consultation Questions
1. Do other prescribed bodies use the section 69 exception? If so, how do they
create accessible format copies?
Other tertiary institutions and the Blind and Low Vision Network New Zealand
(BLENNZ) do produce some limited AFP (Accessible Format Production) material for
their own students. (We presume you are referring to bodies that might meet the
requirements to become prescribed bodies but are not formally gazetted as such).
These are mainly (to our knowledge) hardcopy large print and various forms of
electronic documents that can be read through a variety of devices. The Blind
Foundation is now the only (main) producer of Braille in hard copy though the
technology is potentially available in automated forms for use by other agencies.
2. Are there any other barriers or impediments to produce accessible format
copies under the existing exception that have not been canvassed above?
No. The current Sec 69 exemption is comprehensive.
3. How do other prescribed bodies apply the commercial availability test?
The Blind Foundation employs professional librarians in the AFP acquisition process
chain and one of their tasks is to search for nationally and internationally for existing
commercially produced and available AFP for requested items.
We are unable to say what processes other prescribed bodies might follow.
4. Does this section correctly describe the rights holders and organisations
that represent rights holders in New Zealand who are involved in the
publication of written material?
Yes, to the best of the Blind Foundation’s understanding.
5. Are there any other relevant organisations or individuals?
N/A
6. What kind of services do these organisations currently provide for the blind
and people with other forms of print disability?
Blind Foundation client surveys indicate people who are blind or have low vision use
public library services in addition to the Blind Foundation.
In many cases other organisations such as public libraries make extensive use of
large print and audio formats to borrow audio CDs; to download audio from the
libraries own collection or use the library as a portal to other services such as
Overdrive. In virtually all cases these services will not use Sec 69 and will use
commercially available items.
The Blind Foundation Library Service is actively working with public libraries and the
National library to provide a national print disability collection. We are conducting
pilots extending access to our collection to print disabled New Zealanders. An
underlying feature of these proposed developments is that collections are
“controlled” and comply with Sec 69.
7. Does the current operation of the exception limit what they can provide and
if so, how?
We cannot comment on how other prescribed organisations might find Sec 69
restrictive.
The Blind Foundation does not have the funds to buy as much commercially
available material or produce accessible formats as it might otherwise do under Sec
69. There are many items technically available to produce in accessible formats but
due to their commercial non-availability it is not cost effective to do so locally.
8. What impact, if any, are initiatives like DAISY, TIGAR and Bookshare having
on the availability of accessible format copies of works in New Zealand? To
what extent is this impact likely to change in future? What could be done to
enhance their reach?
TIGAR and Bookshare both make electronic files much more readily available to
blind and low vision users. Once the Marrakesh Treaty is implemented our estimates
are that the volume of material available will double to about 350,000 items. That is
once the Treaty is ratified and the statutes changed. TIGAR and Bookshare are both
providing New Zealanders with the opportunity to access a wider range of
information. TIGAR is limited by the number of titles that don’t clear copyright, and
the slowness of moving them through copyright. Bookshare uptake has been slow
but we are looking at reinvigorating client use of it. These are steps in the right
direction, but don’t provide the straightforward, instant ease-of-access that
Marrakesh would enable.
DAISY is a format specifically designed for print disabled users. DAISY continues to
evolve and for the foreseeable future there will be a technical demarcation between
conventionally formatted electronic files (Audio CD, MP 3, and MP4) and those
formats which have features designed for use by people who have sight disabilities.
This means the Marrakesh Treaty will remain relevant because conventional fully
accessible commercial formats will not become universally available any time soon.
9. What challenges are faced by people with print disabilities in obtaining
accessible format copies to meet their particular needs? Has this changed
over time? Do you think any other factors are relevant in the description of the
current circumstances facing people with a print disability when trying to
access works?
Access to information is limited by what is available, which leads to an inequitable
information society. The challenge is to have the same right to information as any
other New Zealander who can access a public library, and we are a long way from
that point. At an individual level that can be the frustration of not having sufficient
recreational reading through to being a major impediment to career training. The
Blind Foundation regularly produces accessible formatted books on technical
subjects such as law or horticultural science that could possibly be obtained from
other prescribed bodies.
The impediments are the small percentage of titles available in accessible formats,
and the time it takes to format items in an accessible way. Free transfer of titles will
help to reduce both issues. TIGAR and Bookshare increase the range available, but
these services can only be used directly by people who have computer and internet
access. The Blind Foundations client survey (2014) indicated that 41% of Blind
Foundation clients have internet access (compared to 85%+ in the mainstream
population). This means the exchange of accessible material (via prescribed bodies
such as the Blind Foundation) will continue to use hard copy and physical formats for
the foreseeable future.
The Blind Foundation uses TIGAR. Each request for an item is separately approved.
So despite a copy of the item being available in the TIGAR database TIGAR staff
obtain permission direct from the publisher for its use offshore. Currently the Blind
Foundation has a backlog of 3,000 requests. In addition to the request backlog,
since joining TIGAR in 2013 the Blind Foundation has received 644 titles but has had
400 requests declined based on the publisher's refusal to grant permission.
10. Do you agree with the problem definition? What relative weight do you put
on each problem listed above?
a. uncertainty over the legality of importing and exporting accessible format copies of
works, which has resulted in time-intensive and costly duplication of efforts to
reproduce works that would otherwise be easy and inexpensive to share and
distribute;
The Blind Foundation thinks the uncertainty issue is about 40% of the problem. Local
production can sometimes add value (accessible formats can be designed around a
specific individual user) but in most cases a generic imported AFP item will meet the
local requirements
b. the high cost of producing an accessible format work combined with the relatively
low demand for many individual titles in New Zealand makes it hard to justify
production costs, particularly as resources at the disposal of agencies representing
the blind and people with any other form of print disability are stretched thin.
The Blind Foundation estimates this to be about 20% of the problem. In many cases
production has to be individualised to meet specific educational or vocational needs.
By being able to import works that fit a general requirement it will release resources
to work on more specialised and sometimes one off production requests.
c. the ability of most individuals with print disabilities to access published works in
accessible formats is very limited. Even those that do qualify for services provided by
prescribed bodies can only access a limited range of available works and often face
significant delays.
This is about 40% of the overall problem. The production of AFP material is
specialised and while it can be semi-automated in some cases (for instance
magazine style publications and simple text), works with graphical and pictorial
content and complex text forms are still labour intensive. An NCEA maths text book
for instance, can take a trained braille producer up to 3 to 4 months to produce. The
ability to import books of this kind will be a major benefit.
11. Is the uncertainty resulting in either breaches of rights holders rights or
leading to fewer accessible books being produced? Please provide details.
The uncertainty about import and export of AFP has probably been a factor in the
slow development of exchanges between prescribed bodies. For instance, the Blind
Foundation has obtained AFP (mainly in the form of braille and audio books) from its
equivalent agencies in Australia and the UK. The amount of exchanged work is
relatively small and the exchange has to be carefully negotiated to avoid works
where copyright is in any way an issue.
12. Are there any other problems with the current exception?
The primary concern with the current exception is the relative lack of certainty about
exactly who is permitted to access a print disability collection. This is double edged
because a prescribed list could be equally problematic.
13. Do you agree with the policy objectives?
a. Improved access to accessible format copies for New Zealanders with a print
disability.
Yes, we believe fully accessible reading material available to print disabled people is
less than 10% of what is available to mainstream users. The Treaty will help reduce
this ratio and add immeasurably to the lives of those who will benefit.
b. Greater certainty in the section 69 exception as to what prescribed bodies can and
cannot do.
This is a major feature as it will align prescribed bodies legal rights and facilitate
cross border exchange. It will also clarify the rights of prescribed bodies to produce
AFP and assist in obtaining publishers’ electronic files from which to produce AFP
works.
c. Adherence to New Zealand’s international obligations: the three-step test (which
requires that the exception not conflict with the normal exploitation of the work and
not unreasonably prejudice the legitimate interests of the rights holder) and the
United Nations Convention on the Rights of Persons with Disabilities and the United
Nations Convention on the Rights of the Child (collectively the United Nations
Conventions).
The Blind Foundation production process fulfils the three step test requirement. In
all respects, the Treaty will advance New Zealand's compliance with UNCRPD both
with Article 9 (Accessibility) but also other rights on employment, education, freedom
of expression and civic and political participation.
14. Are there any other (policy) objectives that should be taken into account?
Sharing the Blind Foundation’s collection with print disability libraries overseas will
ensure that New Zealand is a full reciprocal partner to the Treaty. Currently,
exchanges of content are slow because of relatively cumbersome but essential
agreements that facilitate legitimate copyright clearance. Sharing should become
more straightforward under the terms of the Treaty, making the works of New
Zealand authors more easily available to print disabled readers around the world.
New Zealand would become a key partner and provider in a worldwide print disability
library.
15. Do you think there are any other viable options? If so, please provide
details
We think the three options cover the range of possibilities.
16. Do you think there are any other advantages or disadvantages in retaining
the status quo?
The key disadvantage of the status quo is that print disabled New Zealanders are not
be able to access a wide range of information. This is a form of information inequality
that would continue. As AFP becomes more dependent on digital formats and
transmission, the current Sec 69 exemption will become increasingly inflexible in
allowing NZ to take advantage of international developments such as file exchange
systems. With the accession of countries like Australia, and the likely accession in
the short term of countries like Canada and the US, New Zealand would be left
behind if it did not accede to the Treaty. Print disabled New Zealanders would have
much poorer access than their counterparts in other comparable countries.
17. How could access to works in accessible format copies be improved
without acceding to the Marrakesh Treaty and implementing legislative
change?
The Blind Foundation thinks the AFP library collection could be increased in size
without the Treaty but, this will be strictly limited by funding and the ability to sustain
a specialised workforce for the long-term. We would still be limited to a small
proportion of published works. The funding for AFP is constrained by what
government is able to budget for educational AFP.
The Treaty will allow a relatively low cost method of expanding the collection
(exchange rather than local production) and this will allow better utilisation of the
current funding. In the Treaty based model, it is probable the Blind Foundation will
obtain educational books that would otherwise have used Ministry of Education
(MoE) contract funding to produce, thus the MoE will obtain a direct financial benefit.
18. Should the definition of works be extended to include artistic works? What
would the consequences be?
Yes. This will remove grey areas and ensure that access to artistic works is provided
for print disabled New Zealanders. This does broaden the definition and remove
some concerns about what ‘literary’ and ‘dramatic’ mean
19. Is clarity on export and import useful? What are the advantages? Are there
any disadvantages?
Yes, clarity would be useful. Import-export is a major benefit of the Treaty and would
provide certainty around future practices and how the locally available collection can
be increased. Also, the exemption should include the potential for clients to
download directly from overseas agencies. We would want to be confident this was
within the law, and clarifying this in the exemption is essential. (Note this will have a
beneficial impact on the usability of TIGAR and Bookshare by NZ end users)
20. Do you think there are any other advantages or disadvantages in joining
Marrakesh by making the minimum legislative amendments required to meet
our obligations and make the exception workable for cross-border exchange?
No.
21. Do you agree there is benefit in extending the exception to specifically
allow people with a print disability and caregivers acting on their behalf to
make and import accessible format copies? If possible, please provide
examples.
Yes. Direct import and export to clients removes a barrier to access of information.
The provision to include a third party helper is essential because in some cases the
end user can be physically unable to manage the device being used.
Using a third party agency, such as the Blind Foundation library, as an intermediary
between the end user client and the overseas source means the client’s access may
be slower. This may be due to workload, processes or collection policies. Through
direct access the client is getting much closer to the anytime, anywhere model
prevalent for people who are not print disabled. Conversely, the use of an
intermediary third party does bring control to the process, but that can in effect be a
form of passive censorship.
22. Are there any other advantages or disadvantages in allowing people with a
print disability and caregivers acting on their behalf to make and import
accessible format copies?
No.
23. Would further guidance be required on the relationships between local
authorised entities and authorised entities and beneficiaries in other
countries?
No, the Treaty should confine itself to the issues of copyright; in all other matters the
agencies should be able to establish procedures and arrangements as they need to
suit local requirements and emerging technologies.
Publishers are concerned that new electronic formats are readily copied and unlike
older formats, such as Braille, have immediate usability in the mainstream. Hence
the view that release of exempted material to prescribed bodies can lead to major
breaches of copyright and pirating of material. "Loaning" of AFP material produced
or imported under the Sec 69 exemption must still comply with loan restrictions that
prevent copying or other breaches.
24. Is amendment required to provide clarity that reading disabilities such as
dyslexia are included? What would be the impact of specifically extending the
definition to include those with reading disabilities?
Definitions should provide certainty but caution should be used if it means that
people with print disabilities not specifically listed are prohibited access. To date
"print disability has been used as an all-encompassing term including for what might
be termed 'reading disabilities.'" New Zealand's National Library definition of print
disability is:
“People with a print disability are those who cannot obtain access to
information in a print format because they:
•
•
•
•
are blind or vision impaired
have physical disabilities which limit their ability to hold or
manipulate information in a printed form
have perceptual or other disabilities which limit their ability to follow
a line of print or which affect their concentration, or
cannot comprehend information in a print format due to insufficient
literacy or language skills.
For example, adults and children with the following may be eligible to use
the Print Disability Service:
•
Arthritis
•
Dyslexia
•
Hospitalisation
•
Learning difficulties
•
Medication causing blurred vision or lack of concentration
•
Multiple sclerosis
•
Muscular dystrophy
•
Paralysis
•
Side effects of treatment
•
Stroke
Other definitions also include the cognitive causes of the disability. The Blind
Foundation’s suggestion is that technical advice on this point is needed. The
definition should be sufficiently inclusive. 25. Would it be useful to modernise the
language used in the current definition of print disability?
It would be useful to have clear and straightforward language and definitions. The
more certainty we have about who we can provide service to, the more confidence
we have that we are within the law.
26. Do prescribed bodies currently have practices and procedures along the
lines prescribed by the Marrakesh Treaty?
The Blind Foundation’s procedures meet the requirements of the Treaty. For
instance, the three step test including the use of commercially sourced material
where this is possible and can be reasonably done.
27. Would it be useful to provide greater clarity around the role and obligations
of authorised entities, and make the role and obligations of prescribed bodies
more explicit?
See answer to Question 23. The Blind Foundation’s view is the Treaty and the local
statute should define print disability and the qualifying formats. The role of prescribed
bodies should be to work within those definitions. The Treaty should also grant (via
local statute) specific approvals for the exchange, import and export of the defined
AFP materials to appropriately prescribed bodies. The statutes should not attempt to
specify process, or limit which agencies might become prescribed bodies.
28. How will libraries and educational institutions use this exception compared
to the normal library lending model?
Those institutions may obtain AFP material directly for their clients without having to
go through a specialised AFP producer. These agencies are much more likely to
work diligently for print disabled clients where they are able to use non-commercial
sources especially for electronic documents.
29. Would opening up the exception further, for example by allowing a wider
range of entities to use the exception pose problems for rights holders? If so,
how could those problems be addressed?
See answer to Question 23. Rights holders may take the view their risks are
increased by the number and type of prescribed bodies that qualify for the
exemption. The statute might include a provision that prescribed bodies have to work
within guidelines (not specifically regulated) to manage those risks. The risk for
prescribed bodies is that end users may violate the terms of their use of the AFP by
further illegal copying and distribution. Currently the end users (i.e. Bookshare) are
registered clients of the Blind Foundation and the download service we currently
operate has a number of features that work to minimise the risks. However we are
concerned those restrictions should not become binding regulations.
The opening up of the exemption to a wider group of prescribed bodies may result in
those bodies doing only relatively small volumes of AFP; be unfamiliar with the
requirements and in danger of inadvertent breaches.
30. Should there be specific remedies for rights holders in instances where a
prescribed body or authorised entity is found to be breaching the Copyright
Act, or where an organisation that is not prescribed undertakes accessible
format production without permission?
There should be a provision that the offending agency can have its prescribed nature
rescinded in the event of proven deliberate violations. This would require inclusion in
the clause dealing with copyright exemption. The offending non-prescribed
organisation should be subject to conventional copyright enforcement procedures
quite independently of the exemption clause.
31. Would a mandated reporting system, for example replicating the TIGAR
system, be desirable?
The Blind Foundation does not favour any reporting system which is bureaucratic
and creates additional transaction costs; this would conflict with the intention of the
treaty. We think a simple reporting system, worked out and agreed between
Authorised Entities, rights-holders and MBIE would suffice. It would allow us to get
useful data on how Marrakesh was benefitting our clients which would help other
countries less far down the road than us, and would assist us to tweak the
implementation in future. The Blind Foundations view is that a reporting system
ought to be a voluntary one but we’d be open to discussing it.
32. Is the Bookshare model for determining whether a person has a print
disability (requiring medical certificate or other prescribed documentation)
useful? If not, are there alternative useful models?
Bookshare works on the basis that the end user qualifies for the service under the
exemption that wholly rests on the end users disability status. In the current process,
the end user registers and produces proof of their qualification. Alternatively, the end
user is certified by a prescribed organisation such as the Blind Foundation. No other
solution comes to mind and the Blind Foundation will continue to act as a certifying
agency for its clients who wish to use Bookshare. TIGAR on the other-hand offers a
wide range of electronic formats and has a sizable potential user base once the
copyright limitations are overcome.
33. Should further guidance or regulation be provided on how the commercial
availability test should be applied? If so, what sort of guidance would be
useful?
No, currently the commercially available requirement of Sec 69 allows a degree of
discretion that the Blind Foundation values and applies judiciously. For instance, we
have used this to enable more culturally appropriate productions which reflect local
values to be made than might have been available on the international market.
Where the Blind Foundation has imported AFP (mainly audio books) from other
blindness agencies, such as Vision Australia and the Royal National Institute of the
Blind (RNIB), we have gone to some lengths to confirm the copyright status of the
works. In the case of the Vision Australia productions this was a certification by
Vision Australia of the provenance of the works being exchanged. In the case of the
RNIB the Blind Foundation wrote to right-holders and obtained specific permission
for approximately 1,000 titles. The Treaty would remove this doubt by giving the
Blind Foundation the assurance that the originating agency had full right to the works
being exchanged.
34. Would it be useful to include a defined term similar to the Marrakesh Treaty
which focusses on the needs of the end user rather than the format?
Yes, the Blind Foundation agrees with this approach. Formats will change as
technology advances. For instance, Braille can be displayed on multiple devices and
media so the format in which Braille is actually stored and transmitted will evolve to
satisfy display options. That said, the use of a tactile end user interface is expected
to remain constant.
35. Would this ensure that the exception is better future-proofed by being able
to respond to changing technologies?
Yes.
36. Do you agree that joining the Marrakesh Treaty and considering other
changes to improve the operation of the exception within the framework
allowed for by Marrakesh is the best option?
Yes, within the general proviso the Treaty should empower the production and
exchange of materials for people with print disabilities but should not be prescriptive
on the processes to be followed.
37. Are there any concerns regarding the quality of accessible format copies of
work that may be imported or created under the Marrakesh Treaty framework?
No, the final choice of whether to produce or import materials should rest with the
prescribed body acting in the best interests of the client. The commercially available
test is essential to obtain the cooperation of right holders. The exemption must allow
latitude (as it does at the moment). Rights holders must be able to opt to produce an
item to a required standard if the commercially available material is not "reasonable"
considering price availability and quality.
38. Are there any other advantages or disadvantages in terms of greater
certainty around legal rights and obligations?
No.
39. Do you foresee any other advantages or disadvantages for New Zealand in
joining the Marrakesh Treaty?
No.
Additional Comment
The Blind Foundation thinks that a post-Treaty working group should be established
to guide and monitor the implementation of the Treaty. That working group could
deal with many of the questions left unanswered – some of the issues in Q27, 28, 29
and 31 for instance. It would also ensure that the Treaty response remains current.
One of the few problems the Blind Foundation has with Sec 69 in recent years is it is
seriously out of date in terms of language and technology.
END