N ZIPA proposes that O ption 3 as put forward in the discussion document b e adopted. O ption 3 b eing joining the Marrakesh Treaty to Facilitate Acce

Transcription

1 26th February 2016 B usiness Law C ommerce, Consumers & Communications Branch M inistry of Business, Innovation & Employment P O Box 1473 W ellington M arrakeshtreaty@mbie.govt.nz VIA ON LY N ZIPA Submissions to the Discussion Document on the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually I mpaired or Otherwise Print Disabled I ntroduction T he following submissions have been P atent Attorneys ( NZIPA ). made o n behalf of the New Zealand Institute of The NZIPA was incorporated in 1912 and represents most, although not quite all, patent attorneys registered under the New Zealand Patents Act 1953 that are resident a nd practicing in New Zealand. P atent attorneys hold a unique position in New Zealand's innovation sector. The patent attorney profession continues to evolve and respond to the changing needs of the New Zealand and global environments. Patent attorneys provide real support to N ew Zealand's innovators through identification and enhancement of ideas, protection and commercialisation. That support is not limited to patent law, and covers a broad r ange of legal and commercial issues. I t follows that the NZIPA can offer a unique perspective on the matters outlined and proposed in the d iscussion document t o which these submissions are directed. S ummary NZIPA is generally supportive of increasing the access to published works within New Zealand for people with a print disability.

2 N ZIPA proposes that O ption 3 as put forward in the discussion document b e adopted. O ption 3 b eing joining the Marrakesh Treaty to Facilitate Access to Published Works f or Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled and make the necessary amendments to align with obligations and facilitate cross- border exchange as well as consider other changes to improve the operation of the exception w ithin the frame work allowed for by the Treaty. N ZIPA considers that joining the Treaty would not seem to be that onerous or c ontentious o n New Zealand stakeholders as the Treaty would s eek to clarify the access to the cross- border exchange of published works (imported works) which at p resent under present legislative requirements is not clear and/or may not be allow ed. It is the view of the NZIPA that joining the Treaty, as proposed under O ption 3 in the discussion document, will result in improved access to accessible format copies for N ew Zealanders with a print disability and result in greater certainty in relation to the e xception provisions as to what prescribed bodies can and cannot do. NZIPA suggests that the other legislative and regulatory changes to improve the operation of the exceptions within the frame work allowed for by the Treaty at least i nclude and/ o r be explicitly clear: i. as to whom constitutes persons who are blind, visually impaired or otherwise p rint disabled persons; i i. a s to whom can provide access to the published works; i ii. that those providing the access to the published works are doing so on a non- for profit- b asis; i v. t he commercial availability test is applicable to cross- b order exchange; v. as to the remedies available to holders of Intellectual Property (IP) in the published works for breaches of the Treaty and/or the holders IP rights; and v i. t he commercial interests of the holder IP in the published work are not c ompromised and/or n ot d iminished. D iscussion Documents Questions NZIPA provides the following answers to the questions as put forward in the d iscussion document. Where the question is not relevant to NZIPA have indicated w ith N/A. 1. Do other prescribed bodies use the section 69 exception? If so, how do they c reate accessible format copies? N ot aware of any others. 2. A re there any other barriers or impediments to produce accessible format copies under the existing exception that have not been canvassed above? 3. How do other prescribed bodies apply the commercial availability test? N /A.

3 4. D oes this section correctly describe the rights holders and organisations that represent rights holders in New Zealand who are involved in the publication of w ritten material? I t would appear to do so. 5. A re there any other relevant organisations or individuals? Not aware of any o thers. 6. What kind of services do these organisations currently provide for the blind a nd people with other forms of print disability? N /A. 7. Does the current operation of the exception limit what they can provide and i f so, how? N /A. 8. W hat impact, if any, are initiatives like DAISY, TIGAR and Bookshare having o n the availability of accessible format copies of works in New Zealand? N /A. To what extent is this impact likely to change in future? What could be done to enhance their reach? N / A. 9. What challenges are faced by people with print disabilities in obtaining a ccessible format copies to meet their particular needs? N /A. Has this changed over t ime? N /A. 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 w orks? N /A. 10. Do you agree with the problem definition? Y es as it would seem that there i s limited access to publications for those with print disability and lack of clarity as t o what can be allowed to be accessed. What relative weight do you put on each p roblem listed above? N /A. 11. Is the uncertainty resulting in either breaches of rights holders rights or l eading to fewer accessible books being produced? N /A. P lease provide details. 12. A re there any other problems with the current exception? 13. D o you agree with the policy objectives? Yes as improved access and g reater clarity would be beneficial to all stakeholders concerned. 14. A re there any other objectives that should be taken into account? 15. D o you think there are any other viable options? If so, please provide d etails 16. D o you think there are any other advantages or disadvantages in retaining t he status quo? There would no advantage to staying with the status quo as the uncertainty surrounding cross- b order exchange would remain. 17. How could access to works in accessible format copies be improved without a cceding to the Marrakesh Tre aty and implementing legislative change? There could be no improvement without at least the minimum of legislative change that allows

4 cross border exchange of the works and clarification of the section 69 provision in t he Copyright Act. 18. S hould the definition of works be extended to include artistic works? Yes, as long as it is clear what constitutes reformatting of an artistic work and what those f ormats are. W hat would the consequences be? 19. I s clarity on export and import useful? Y es What are the advantages? Provides clarity to what would constitute an imported and exported work and allowable in respect of cross- b order exchange. A re there any disadvantages? 20. D o 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- b order exchange? Not aware o f any other advantages or disadvantages. 21. D o 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 i mport accessible format copies? Y es. I f possible, please provide examples. 22. A re there any other advantages or disadvantages in allowing people with a print disability and caregivers acting on their behalf to make and import accessible f ormat copies? 23. Would further guidance be required on the relationships between local a uthorised entities and authorised en tities and beneficiaries in other countries? Yes as it is imperative that clear guidelines, legislation and regulations are imple mented so that all stockholders are clear what is and not allowed and what c an constitute a breach. 24. I s amendment required to provide clarity that dyslexia are included? N / A. d efinition to include those with reading disabilities? reading disabilities such as What would be the impact of specifically extending the 25. W ould it be useful to modernise the language used in the current definition o f print disability? Y es. 26. Do prescribed bodies currently have practices and procedures along the lines p rescribed by the Marrakesh Treaty? N /A. 27. W ould 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 e xplicit? Yes as it is imperative that clear guidelines, legislation and regulations are im plemented s o that authorised entities and prescribed bodies are clear what is a nd not allowed and what can constitute a breach. 28. How will libraries and educational institutions use this exception compared t o the normal library lending model? N /A.

5 C onclusion 29. W ould opening up the exception further, for example by allowing a wider range of entities to use the exception pose problems for rights holders? N o as long as t he entities establish that their customers/clients have a print disability. If so, how c ould those problems be addressed? 30. S hould 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 p roduction without permission? Yes, there needs to be a form o f deterrent for those b odies/entities that are found to be in breach. 31. Would a mandated reporting system, for example replicating the TIGAR s ystem, be desirable? N /A. 32. I s the Bookshare model for determining whether a person has a print disability (requiring medical certificate or other prescribed documentation) useful? Y es. I f not, are there alternative useful models? 33. Should further guidance or regulation be provided on how the commercial a v ailability test should be applied? Yes as it is imperative that those intending to access publications under the Treaty are aware and informed of their obligations a nd any ramifications that may arise of doing such. If so, what sort of guidance w ould be u seful? 34. Would it be useful to include a defined term similar to the Marrakesh Treaty w hich focusses on the needs of the end user rather than the format? Y es. 35. Would this ensure that the exception is better future-p roofed by being able t o respond to changing technologies? Y es. 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 b y Marrakesh is the best option? Y es. 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? N /A. 38. Are there any other advantages or disadvantages in terms of greater c ertainty around l egal rights and obligations? N /A. 39. Do you foresee any other advantages or disadvantages for New Zealand in j oining the Marrakesh Treaty? N ZIPA supports and recommends joining t he Marrakesh Treaty to Facilitate Access t o Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print D isabled and make the necessary amendments to align with obligations and facilitate

6 cross- border exchange as well as consider other changes to improve the operation of t he exception wit hin the frame work allowed for by the Treaty. We trust these submissions are of assistance and are more than happy to answer any q uestions in relation to them o r b e contacted by officials should the need arise. F or any questions or any further information o n the above submissions, please contact T he Secretary N ZIPA P O Box 5116 W ellington N ew Zealand s ecretary@nzipa.org.nz Y ours Sincerely