Commercial Availability: The Poison Pill for Marrakesh Treaty Implementation

If you can buy a book, you can’t borrow it. 

That’s the lobbying position of some companies in the intellectual property field when implementing the new Marrakesh Copyright Treaty. Marrakesh is intended to end the book famine for people who can’t read regular books because of their disability. Libraries for people who are blind or dyslexic are the primary source of accessible books in audio, large print or braille. But, some companies want to empty the library shelves and insist that only books that can’t be purchased are allowed to be stocked in such libraries. Imagine what a regular library would look like if it couldn’t stock books that could be purchased by the general public! That would pretty much defeat the purpose of having a library.

As the founder of the largest library for people who are blind or who have other significant disabilities that prevent them from reading printed texts (such as dyslexia or brain injuries), I think this is a terrible idea. Since people with disabilities tend to be the poorest of the poor, it seems odd to campaign to hobble libraries that serve only this community. Wouldn’t it make more sense to make it easier for people with disabilities to get access to the books they need for education and employment?

In this post, I hope to convincingly make the case why countries ratifying the Marrakesh Treaty should implement copyright exceptions for people with disabilities which do not have these self-clearing provisions, technically called “commercial availability limitations.” Our experience successfully building Bookshare under the United States copyright exception, which has no such commercial availability limitation, informs this strong opinion. My position rests on three pillars: the moral case, the economic case, and the practical case.

Countries implementing the Marrakesh Treaty, might benefit from hearing the experience of other countries which have already put such copyright exceptions into place. I hope they follow the lead of the great majority of these countries and allow libraries serving that community to be fully stocked with the needed accessible books!

The Bookshare Library Experience

I am the CEO of Benetech, the nonprofit organization that provides the world’s largest online collection of accessible books, for people with disabilities that interfere with reading, through our Bookshare library. Bookshare was created under the Section 121 U.S. copyright exception, which was one of the inspirations for the Marrakesh Treaty.

The Bookshare promise to American students with disabilities is that if they need a book for education, Bookshare will ensure that they have it. Under our copyright exception, we simply buy a copy of the needed print book, scan it using optical character recognition, and create an accessible ebook. These ebooks can be instantly turned into the accessible format needed by the student with a disability, such as braille, enlarged print, or our most common format, audio through a computerized synthetic voice. We don’t have to ask for permission from the publisher or author. We don’t have to research questions of commercial availability, affordability, or format availability. We simply act to ensure the person who needs an accessible book can get it.

As an organization that puts this disability-specific copyright exception into practice, I can say with confidence that the U.S. exception model works well here. We go to great lengths to ensure the digital works we provide are restricted to bona fide patrons with disabilities. Over 350,000 American patrons now download more than a million accessible books and periodicals each year!

And while the publishing industry was skittish about Bookshare’s library at first, now more than 500 publishers are our partners, directly providing over 80% of the 5,000 books we add to our collection each month. Publishers, representing the majority of top trade and educational books, have already voluntarily provided, for free, more than half of the 385,000 books in the Bookshare collection.

Together with these enlightened publisher partners, our nonprofit has been able to effectively end the book famine in the United States for people with disabilities that affect the reading of print.

The Moral Case

The Marrakesh Treaty is a human rights treaty in an intellectual property framework. Its primary goal is to end the book famine for people with disabilities, ensuring that they have access to the materials they need for education, employment, and social inclusion. Assisting the blind has been a moral imperative for societies and religions since ancient times. With the advances in publishing and technology, it is now within reach to ensure equal access to books for all.

The Marrakesh Treaty was designed to address the biggest remaining obstacle: the existing system of providing books to society did not meet the needs of people with disabilities. The commercial publishing industry isn’t selling accessible books, and the cost to obtain permissions to produce accessible editions of print books effectively discouraged the social sector from doing more than a token amount of accessible book production in the great majority of countries in the world. And thus we have a book famine, where the typical blind person in the world has no accessible books, and depends on the charity of others to read books aloud.

In the face of such denial of access to information, a copyright exception that makes it possible for the charitable sector to serve these needs makes great sense. However, saying that libraries that serve people who are blind or otherwise disabled when it comes to reading print are barred from lending books when it is possible for someone to purchase that book does not make moral sense. Why destroy the ability of libraries to serve some of the most economically disadvantaged in our communities first? This is capitalism at its least admirable. That is the essence of the moral case for a copyright exception. It enables the realization of the right to read. It has a minimal impact on the financial interests of the publishing industry. And it is within our reach.

The Economic Case

We shouldn’t put the economic interests of publishers ahead of the human rights of people with disabilities. This is especially true when the long-term economic interests of publishers are better served when potential purchasers of books have the best chance at an education and employment through access to knowledge.

Our experience in the United States has shown that economically empowered people with disabilities tend to be voracious readers and active purchasers of accessible audio books and ebooks. But that is because we have a robust copyright exception in the United States that ensures that people who are disabled have equal access to all of the books they need from accessible libraries. They are just like people without disabilities who depend on libraries if they are poor, and generally prefer to purchase books when they have the capacity.

One of the top three advocacy positions in the United States of both the National Federation of the Blind and of my organization is campaigning for greater accessibility of commercial electronic books. Our motto is “If it’s born digital, it should be born accessible!” This may seem counterintuitive: why would organizations that so strongly support a copyright exception without commercial availability limitations fight for commercial availability? Fundamentally, it’s about equality. People with disabilities should both be able to use libraries on terms similar to those of people without disabilities, and be able to purchase books that work for them. But, we strongly object to removing the safety net of an effective copyright exception in the United States while we are still early in the born accessibility campaign.

The Practical Case

Charity provision is done on a shoestring. Government funding is slim, and not available in most of the world. Rights clearance and research is expensive: it’s a big reason we don’t have the books people with disabilities need in most of the world. As Bookshare, we believe we can find money to extend the availability of our collection globally to the poor. Richer countries like the U.S., Canada, and the UK all fund our work, with a focus on serving their citizens. But these countries have no objection to helping others with the results of that work.

A key provision of the Marrakesh Treaty is easing the import and export of accessible books among countries implementing the treaty. The leverage here is ensuring that our patrons benefit from the sum of global efforts to make accessible books, rather than recreating the same titles over and over again.

This, of course, was the founding idea of our Bookshare library: scanning a book once and then making it available to all the people who need it. And we’re now making this happen in countries beyond the United States who, like India, have implemented Marrakesh without commercial limitation provisions. We now have volunteers throughout India adding local language titles such as Tamil into Bookshare.

But, in countries with a “commercial availability” limitation, it doesn’t work very well there. Charities fret about whether they might get in trouble. They don’t touch important titles, denying access to people with disabilities to the books in great demand from people without disabilities.

As Bookshare, we won’t touch the books needed in those countries. We have no effective ability to research availability and don’t want to risk our services in our home country, which is paying for over 95% of our work. We are delighted to serve books to Canadians with disabilities today, but we only serve up books where we have publisher permissions. This works well for English language titles in demand in both countries, but not for Canadian specific titles, especially in French.

Marrakesh allowed for the possibility of commercial limitation (though it does not mandate it) because a handful of countries, generally wealthy ones such as Canada, had these provisions in their domestic copyright exception, and they needed to be accommodated. But, this is a poor model for fully addressing the book famine and one that shouldn’t be emulated, especially in the international context of the Marrakesh Treaty. This is especially true of developing countries without the means to fully fund these efforts and financially accommodate publishers for the ability to serve people with these disabilities.


The language a few publishers and other intellectual property lobbyists are pushing for in the laws being devised to implement the Treaty—including the “if you can buy a book, you can’t borrow it” concept—could mean the end to libraries as we know them. It would severely undercut the traditional role libraries play in serving those who simply cannot afford to purchase books. Imagine a person using the library to do research or a school project—someone who needs to look at ten or twenty books, but doesn’t want to buy them—they’d be out of luck. And, if we start requiring people with disabilities to buy books rather than borrowing them from libraries, who’s next on the list? Ripping books out of the hands of those who need them most—whether it’s from our Bookshare library or from your local library—is simply unconscionable.

Furthermore, it doesn’t make economic or practical sense. Publishers will be better off in the long term if people with disabilities have better access to educational and economic opportunities. People with disabilities are the most logical customers for digital ebooks. We need to drive to a future where those people who can afford books easily can, and those that cannot are not denied access to this critically important content.

As your country moves to implement the Marrakesh Treaty for all the good and wonderful reasons of helping people who are blind or have other disabilities that interfere with reading print, please advocate for a copyright exception without the poison pill of limiting this law to books that cannot be purchased. If we can do that together, we will advance the cause of ending the book famine, and providing far better opportunities for people who need accessible books the most, and are least able to afford them.


Jim Fruchterman said…
The following comments by Marcus Low, a blind activist from South Africa who was part of the Marrakesh Treaty negotiations, were made on an email list discussing this topic especially around Canada's proposed Marrakesh implementation legislation, and are reproduced here with his permission

There is another serious problem with commercial availability that is widely underappreciated and that is potentially very limiting and frustrating to blind people like myself.

In short, in many cases where there will be a commercially available version of a book on the market in an accessible format, that book might not be available in the right accessible format for a specific individual. Here are two ways in which this problem works:
1. In some cases the only commercially available accessible version of
a book will be the Kindle version. In such a case people who do not have a Kindle or a device with an accessible Kindle app will be excluded (same goes for books exclusive to iBooks or Kobo etc.). For middle class people in rich countries this may not be such a big problem since people could simply buy the additional devices needed, but in poor countries it creates a very significant barrier to accessing books.
2. In some cases the only commercially available accessible version of
a book will not be sufficiently accessible. Some people need accessible format books that allows for reading with a refreshable braille display, but not all commercially available “accessible formats” allow for that. Personally I need books in formats that are highly navigable, like DAISY, but many commercially available accessible formats offer only very poor navigability. Commercial availability is likely to recreated the situation where people like myself have to struggle with insufficiently accessible commercially available books while more accessible versions of those books exist, but are unavailable due to legal barriers.

I fully agree with the concerns raised by Jim and others.

For an important country like Canada to include commercial availability it in their implementation of Marrakesh is not only bad in itself, but sends a very bad message to the rest of the world.

I would like to support the WBU and CNIB in whatever way they decide to challenge this crippled implementation of Marrakesh.


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