[A2k] NZ Marrakesh Implementation

Jim Fruchterman Jim.F at Benetech.org
Sun Feb 10 16:34:30 PST 2019

Benetech also submitted comments on the proposed law at the request of NZ universities, inserted below.

Benetech, a California-based nonprofit corporation with recognized charity status in the United States.  Benetech operates Bookshare, the world's largest online library with accessible books for people with disabilities.  Bookshare currently has roughly 50 users with disabilities in New Zealand registered as active members. The Bookshare library plans on being the most active provider of cross-border content globally under the Marrakesh Treaty, now that the United States legislature has ratified the treaty, approved the resulting legislative changes to copyright law, and the president has signed the bill and approved the ratification for submission to WIPO.
Benetech also was one of the primary technical advisors to the World Blind Union in its campaign for the Treaty, and in the creation of the World Blind Union's Guide to the Marrakesh Treaty, http://www.worldblindunion.org/English/our-work/our-priorities/Pages/WBU-Guide-to-the-Marrakesh-Treaty.aspx, which contains the recommendations of the world's primary blind organization for Marrakesh Treaty implementations by the world's governments.

1.     Benetech wishes to express its strong general support for the ratification of the Marrakesh Treaty by all national governments, including New Zealand.  As the world's current largest library dedicated to serving people who are blind or have other disabilities that affect print reading, such as dyslexia, it is our mission to spread access to information to as many qualified readers as possible on a nonprofit basis. We helped write the initial draft of what became the Marrakesh Treaty, and have actively supported its adoption and ratification by as many countries as possible.  We were a key part of the successful campaign for U.S. ratification.

2.     We serve users in over 75 countries, including New Zealand.  We are best able to serve our readers with disabilities in countries that have ratified Marrakesh and implemented its provisions in copyright law.  For example, India was the first country to ratify the Marrakesh Treaty and we now have over 15,000 Bookshare members there.  In addition to having access to many thousands of books from the U.S. under permission agreements, our Indian members now have access to thousands of Indian titles converted in India, but hosted by Bookshare for ease of instant access.

3.     However, the current draft of Section 69, 69A and associated<http://www.legislation.govt.nz/bill/government/2018/0109/latest/whole.html#LMS110851> definitions is not consistent with what our organization (and the World Blind Union) believes are best practices implementations of Marrakesh with respect to the human rights of people with disabilities, because of the commercial availability limitation on the exception.  These limitations create incompatibility issues with the majority of countries implementing the Treaty, including the United States, India and all of the European Union<http://www.europarl.europa.eu/legislative-train/theme-connected-digital-single-market/file-the-marrakesh-treaty-implementation-framework> (including the United Kingdom). We believe that these provisions as drafted will dramatically limit the exchange of accessible books between New Zealand and most Marrakesh ratifying countries.

4.     Commercial availability restrictions, such as those outlined in the proposed Section 69A (2) subsection (a) and (b), unfairly prejudice the access of people with disabilities to the content contained in books. These unusual provisions have the impact of making library services for people with disabilities ineffective and even more unequal.  Sighted people do not go to a public library and find that any book that is currently in print is unavailable to them (with a note suggesting they buy them instead). It also creates a financial burden on people with disabilities, who are generally economically disadvantaged, and on the charitable organizations which serve them, in favor of preventing a highly hypothetical financial impact on generally profit-making publishers.

5.     When a country implements a commercial availability provision domestically, Bookshare will not enable the addition of new books from that country to the globally available Bookshare collection, hobbling the ability of people, schools and organizations in that country to actively address the global book famine.  We cannot afford to police these kinds of provisions which increase the cost of accepting a book, especially when most jurisdictions do not have these costly and constraining requirements.

6.     In addition, the proposed definition of an authorised entity in Section 2(1) includes organizations in other Marrakesh Treaty ratifying countries, attempting to apply this unjust commercial availability restriction on organizations who operate primarily in national jurisdictions without this requirement.  This hinders the bilateral exchange envisaged under Marrakesh, because of the impracticalities of determining whether a specific work is commercially available in another country in an accessible format.  For example, the implementation directives to member states of the European Union of the Marrakesh Treaty does not permit this.  If the New Zealand amendments are read to place this burden on organisations outside New Zealand when contemplating the exporting of accessible content to persons with disabilities in New Zealand, Bookshare will disable the export of accessible materials under copyright exceptions (such as those in the Marrakesh Treaty) to people with disabilities in New Zealand.  As an organization, we need to respect copyright law, and rather than violating New Zealand's law, it is unfortunately more expedient to simply turn off availability rather than diverting limited resources from our donors away from book acquisition and conversion to doing copyright availability and notification efforts in other countries.
Finally, a clarifying note.  We recognize the challenges faced by our fellow libraries who are based in the few countries (such as Canada), which have chosen to implement a commercial availability limitation on their copyright exception, which is supposed to benefit people with disabilities.   Although we as a charity with a global remit are unwilling to undertake compliance with commercial availability provisions, we will continue to actively support our fellow libraries who are based in countries with such provisions and are endeavoring to comply with their national copyright law.  Whatever choice is made by the Parliament of New Zealand in this matter, we will continue to provide accessibility technology support as well as accessible books we obtain under publisher permission arrangements to New Zealand's Blind Foundation, educational institutions and residents with disabilities, even as we are unable to provide accessible books under Marrakesh-related copyright exceptions for countries that place a commercial availability limitation on our ability to export these books into such countries.

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