Legislative context
National and international laws are strengthening the demand for accessible content, not only by encouraging the production of accessible publications, but also by requiring that the entire book supply chain integrate accessibility into its production and distribution flows.
INDEX
- European Directive on the Accessibility Requirements for Products and Services (European Accessibility Act)
- Marrakesh Treaty
European Directive on the Accessibility Requirements for Products and Services (European Accessibility Act)
In the European context, the European Directive on the Accessibility Requirements for Products and Services, the so-called “European Accessibility Act”[1], approved by the European Parliament on 17 April 2019 and published on the Official Journal of the European Union on 7 June 2019, aims to improve the market for accessible products and services, removing barriers in the Member States and defying a set of accessibility requirements, bringing benefits to persons with disabilities and to the elderly population across the EU and with potential global benefits.
The Directive has been implemented by EU Member States within their national legislations by June 28th, 2022, and applies to all products and services included in the legislation that are placed on the market from 28 June 2025.
In Italy, the Directive was implemented through the Decree No. 82/2022 (in Italian: Decreto Legislativo n. 82 del 2022).
BENEFICIARIES
Beneficiaries of the Directive are people with disabilities defined according to the UN Human Rights Conventions. This includes all persons who have permanent or temporary physical, mental, intellectual, or sensory disabilities who, due to any barrier, may be prevented from fully and effectively participating in society on equal terms with anyone else.
SCOPE OF APPLICATION
The Directive applies to many products and services, those of interest to the publishing industry are:
- e-books, here considered services;
- reading solutions and software, including mobile versions intended to enable the operations of accessing, browsing, reading and using e-books;
- e-commerce services, including mobile versions, including those that sell print books; and
- e-book readers (devices) that fall under the category of products.
RESULTING OBLIGATIONS FOR DIFFERENT OPERATORS
Obligations for publishers related to e-books
Publishers are required to:
- publish all their e-books meeting the accessibility requirements of the standards indicated in the Directive;
- distribute e-books accompanied by descriptive metadata of their accessibility features;
- in the event that the e-book also contains an audio file in addition to the text, ensure synchronization between text and audio;
- ensure that digital rights management (DRM) measures do not affect accessibility features.
OBLIGATIONS RELATED TO READING SOFTWARE SOLUTIONS AND E-COMMERCE WEBSITES
Reading software solutions and e-commerce websites must be developed in compliance with the accessibility requirements outlined in the Directive.
They must also:
- provide information regarding the accessibility of the products and services sold if such information is provided by the responsible economic operator, so in the case of e-books they must make visible the metadata provided by publishers;
- ensure the accessibility of functionality for identification, security and payment if it is provided as part of the service;
- provide identification methods, electronic signatures, and payment services that meet accessibility requirements.
The use of Web Overlays alone, i.e. solutions that add a layer to the website that inserts some accessibility features, is not a solution deemed appropriate by the European Commission since the requirements outlined in the Directive call for accessibility specifications to be an integral part of the structure of the website itself: https://digital-strategy.ec.europa.eu/en/policies/web-accessibility.
OBLIGATIONS RELATED TO E-BOOK READES (DEVICES)
The accessibility of devices falls under the responsibility of their manufacturers. As products, this is an area of responsibility of the Ministry of Enterprises and Made in Italy.
REFERENCE STANDARDS
In order to comply with the requirements of the Directive, it is necessary to adapt one’s products and services to the technical requirements outlined in the Directive.
High-level technical accessibility requirements are currently provided for in the Directive and they will later be supplemented with the indication of Harmonized European Standards or Technical Specifications.
Regarding Web standards, the Commission has called for a revision of the European Harmonized Standard EN 301 549 “Harmonized European Standard Accessibility requirements for ICT products and services” to bring it in line with version 2.2 of the WCAG (Web Content Accessibility Guidelines). To be considered compliant, it is mandatory to meet at least WCAG level A and AA criteria.
Other reference standards that meet the requirements outlined in the Directive are:
- for ebooks the EPUB 3.3 and EPUB Accessibility 1.1 specifications;
- for metadata the ONIX for Books and EPUB Accessibility Metadata.
In this regard, Fondazione LIA has prepared an articulate document highlighting how both EPUB (regarding e-book formats) and ONIX and EPUB Accessibility metadata (which is based on Schema.org) already meet the technical accessibility requirements outlined in the legislation. The document was prepared to ask the European Commission for standards already in use in the field to be adopted as Technical Specifications for the implementation of the Act.
For more information see: https://www.w3.org/TR/epub-a11y-eaa-mapping/
EXEMPTION FOR MICROENTERPRISES
The Directive provides exemption from accessibility requirements for microenterprises, i.e. businesses that employ fewer than 10 people and have an annual turnover or annual balance sheet total not exceeding 2 million euros.
Despite the exemption, microenterprises are also encouraged to comply with accessibility requirements where possible.
To enable microenterprises to attest that an e-book is produced by them, a specific field recently included in ONIX metadata can be used.
POSSIBLE CONDITIONS OF NON-APPLICABILITY
Compliance with accessibility requirements may not apply if it:
- requires a significant change in a product or service that results in the fundamental alteration of its basic nature;
- results in the imposition of a disproportionate burden on the economic operators concerned. This burden must be assessed on the basis of specific documented criteria that take into account the following aspects simultaneously:
- the ratio of net costs in complying with accessibility requirements to the overall costs (operating and capital expenditures) of manufacturing, distributing or importing the product or providing the service for the economic operators;
- the estimated costs and benefits to economic operators in relation to the expected benefit for persons with disabilities, taking into account the number and frequency of use of the product/service;
- the ratio of net costs of compliance with the accessibility requirements to the economic operator’s net turnover.
Operators who receive funding, public or private, for the purpose of improving accessibility can’t invoke disproportionate burden.
The assessment of the applicability of these two conditions must be carried out by the service provider (in our area of interest, the publisher). In both cases, the provider must document the assessment and retain the outcomes for at least 5 years from the last provision of the service. The surveillance authority (in Italy: AgID) may require that supporting documentation is exhibited before the aforementioned period.
In the event that the aforementioned conditions are invoked by the publisher, they need to be communicated to the surveillance authoriy (in Italy: AgID), which will provide operators with an IT platform for sending such communications.
In response to this requirement, specific new fields have recently been included in the ONIX for books metadata that allow indicating whether such conditions have been invoked for an e-book.
TRANSITIONAL PERIOD
The Directive provides for transitional measures on the basis of which the accessibility requirements for some products and services can be met at a later date than 28 June 2025, as long as the requirements are met within 28 June 2030: “Member States shall provide for a transitional period ending on 28 June 2030 during which service providers may continue to provide their services using products which were lawfully used by them to provide similar services before that date.”
The Federation of European Publishers (FEP) has developed an interpretation of these provisions, according to which the transitional period should also apply to catalogue e-books. However, in Italy, there are no specific dispositions on this regard.
Therefore, it is recommended that the possibility of considering the transitional period valid for catalogue e-books should not be taken as a given, it is advisable to invoke the disproportionate burden exception under the conditions expressed in the previous paragraph instead.
SUPERVISION OF SERVICES AND USER COMPLAINTS
The Decree designates AgID (Agenzia per l’Italia Digitale, the Italian Digital Agency) as the supervisory authority for services and the Ministry of Development as the supervisory authority for products.
The methods of implementation, the examination of user complaints, and the assessment will be the subject of specific regulations to be published on the AgID website.
AgID will provide a platform for the collection of complaints from users and for the transmission by suppliers of information relating to non-compliance, exemptions, and exceptions.
PENALTIES
In the event that non-compliance with the requirements is established, the surveillance authority will require the service provider/publisher to take corrective measures within a reasonable period of time proportionate to the nature of the non-compliance, taking into account the specifics of each case.
Failure to comply with the obligations imposed by the decree implementing the directive and with AgID’s requests, and failure to cooperate with AgID, will result in the application of severe administrative fines of up to €40,000.
If AgID’s request is not complied with, it may proceed to block the specific service and take measures to prevent the use of the service until the problem is resolved.
The Marrakesh Treaty
The Marrakesh Treaty,[2] one of the treaties managed by the World Intellectual Property Organization (WIPO), was approved in 2013 and entered into force on 30 September 2016.
In September 2017, the European Commission adopted a Directive and a Regulation to implement the Marrakesh Treaty into European laws.
In Italy, the transposition took place through Article 15 of Law No. 37 of May 3, 2019, containing “Provisions for the fulfillment of obligations arising from Italy’s membership in the European Union -European Law 2018,” which supplements the provisions of paragraph 2 of Article 71-bis of Law No. 633 of April 22, 1941.
The implementing decree, which defines the procedures for verifying that Authorized Entities meet the requirements and comply with the obligations of the MBCAT, was published on July 6, 2020.
BENEFICIARIES
The beneficiaries of the exception are:
- people with visual impairments (blind and visually impaired), who already benefited from an exception in the Italian legislation previously in force;
- people with perceptual or reading disabilities, particularly dyslexic people;
- people with physical disabilities that prevent them from holding or handling a book or staring or moving their eyes to the extent that would be necessary to read.
CONTENT OF THE TREATY
The Treaty introduces a standard set of exceptions to copyright laws with the aim of allowing print impaired people and specialized organizations (called Authorized Entities) to carry out the creation of an accessible version of a book without asking the rights holders for authorization (as for the previous legislation). It also allows specialized organizations to distribute content in an accessible format not for profit, including cross-border distribution between Authorized Entities. In both cases, the beneficiaries must have legitimate access to the work from which the accessible version derives and they must operate not for profit.
In Italy there is a clause which states that the copyright exception does not apply if an accessible version of the text is already available on the market. However, the Authorized Entities must be informed of their existence.
AUTHORIZED ENTITIES
Any organization, both public or private, e.g. a public body or a non-profit organization, that provides beneficiaries with education, training, adapted reading or access to information as their primary business, or institutional obligation or as part of their public interest missions, can become an Authorized Entity. These organizations must then provide the said services to the beneficiaries without profit and must be recognized or authorized according to the regulations in force.
The Authorized Entities may also reproduce, on a non-profit basis, copies of entertainment, information or educational works in an accessible format, and then distribute them across national borders through non-commercial lending channels or through electronic communications. In order to carry out these activities, the Authorized Entities must have legitimate access to the original works: they have to only introduce the changes necessary to make the work accessible and provide copies for the use of the beneficiaries only.
Authorized entities must submit a declaration in place of a notarial deed to the Directorate-General for Libraries and Copyright (MiC) of the Ministry of Culture, certifying their name, identification details, contact information, and possession of the subjective requirements provided for by law.
Details on the procedures provided for in the Implementing Decree and the list of authorized entities can be found on this page of the MiC website.
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[1] “Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services”: https://ec.europa.eu/social/main.jsp?catId=1202
[2] “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled”: http://www.wipo.int/treaties/en/ip/marrakesh/