The World Blind Union Guide to the
Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled
Pocket Guide Version
(Supplement to the full Guide)
Prepared by WBU Marrakesh Treaty Ratification and Implementation Campaign Committee
August 2017
World Blind Union
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Toronto, Ontario, CANADA M4G 3E8
Telephone: 1-416-486-9698
Fax: 1-416-486-8107
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Table of Contents
Introduction to the Pocket Guide
Executive Summary
Introduction
Part I – Guiding Principles for the Marrakesh Treaty
Interpretive Principles for the MT
Part II – The Legal and Policy Choices in the Marrakesh Treaty
Exceptions and Limitations to Copyright in National Law
Cross-Border Exchange and Importation of Accessible Format Copies
Part III – Putting the Marrakesh Treaty into Practice in National Law
Conclusion
Introduction to the Pocket Guide
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (referred to as the Marrakesh Treaty or MT in this Guide) is a legally binding international agreement that creates mandatory exceptions to national copyright law to protect the human rights of individuals with print disabilities. Lack of access to information has historically been the major barrier that blind and partially sighted people face worldwide and copyright lawoften contributes to this barrier. In developed countries less than 7% of published materials are available in accessible formats such as Braille, large print, audio, DAISY, etc., and in many developing countries that number plummets to less than 1%.
Commissioned by the World Blind Union, this technical document is the Pocket Guide version of the “Guide to the Marrakesh Treaty”. It is written for WBU members, as well as people new to blindness, and other stakeholders. The Pocket Guide is intended to provide an overview of the full guide and is not to be used in place of the full guide. Rather, this Pocket Guide must be read in conjunction with the full implementation guide and the Treaty itself when negotiating the ratification and application of the Treaty in each country.
The “Guide to the MT” and this Pocket Guide can be found on the WBU website at the following link:
Here you will also find links to accessible versions in English, French, Spanish, Russian, and other languages as they become available. The Marrakesh Treaty itself can be found in all UN languages on the WIPO website at:
Executive Summary
The overarching goal of the Marrakesh Access Treaty or MT is to expand the availability of copyrighted works to the nearly 300 million individuals with print disabilities around the world who currently lack adequate books and other cultural materials in accessible formats. Governments in ratifying countries may face various legal and policy challenges while applying the MT to their legal systems. The purpose of the WBU “Guide to the Marrakesh Access Treaty” is to provide information, guidance, and recommendations to help ratifying countries implement the MT in a way that promotes the ability of print disabled individuals to access and share books and cultural materials in accessible formats.
The “Guide to the MT” also offers guidance to ratifying countries on how to ensure the MT’s implementation respects their pre-existing human rights and copyright commitments. In addition, the Guide recognizes that changes to national law are likely not enough to fully realize the Treaty’s objectives. Consequently, the Guide ends with recommendations on how states can take a range of concrete steps, building on other pre-existing human rights treaties, to effectively enforce the Marrakesh Treaty.
Introduction
The Marrakesh Treaty (MT) was created to end the "book famine", faced by people who lack access to books and other printed materials. Copyright exceptions need to be harmonized across countries to allow for the import and export of accessible materials for individuals with print disabilities.Adopted in 2013 by the World Intellectual Property Organization (WIPO),the MT requires countries to adopt exceptions and limitations to their copyright law to increase access to copyrighted works. It can also limit the needless duplication of published works.
The “Guide to the MT” provides a roadmap for a variety of audiences, including parliamentarians and policymakers, who adopt copyright legislation; judges, who may interpret the MT and its implementing legislation; and print disabled individuals and advocacy organizations, engaged in promoting and monitoring these processes.
Part I – Guiding Principles for the Marrakesh Treaty
The Marrakesh Treaty sits at the intersection ofhuman rights and international Intellectual Property (IP) fields. The Treaty prescribes specific exceptions and limitations to copyright laws for the benefit of persons with print disabilities. Exceptions and limitations are already found in all national copyright laws, for library use of copyrighted materials for example, and they are also recognized in the human rights regime. The UN Convention on the Rights of Persons with Disabilities (CRPD), for example, requires ratifying states to revise intellectual property laws to facilitate access to cultural materials in Articles 30(1)(a) and 30(3). In fact, the MT can help states fulfill several of the CRPD’s provisions as it gives states a concrete way to realize the CRPD’s (and other human rights instruments’) obligationsof removing barriers to the accessibility of cultural materials.
Interpretive Principles for the MT
The “Guide to the MT” identifies a set of principles that interpret the MT as a Treaty that promotes human rights objectives using the legal and policy tools of copyright. Overall, decisions for implementing the treaty should be guided by 1) its object and purpose, which is to promote the human rights of individuals with print disabilities by expanding their access to copyrighted works; 2) an adaptable understanding of its terms to allow them to evolve to fit changes in law, policy, and technology; and 3) that the MT should be consistent with the CRPD. For example, Article 4.3 of the CRPD obliges states to consult with affected individuals and groups and to ensure they are included in its monitoring process. Therefore, print disabled individuals should be consulted by states at all stagesof the implementation process. For more information, see Section 1.2.3. - Promote Consistency with the CRPD in the “Guide to the MT.”
Part II – The Legal and Policy Choices in the Marrakesh Treaty
Part II of the “Guide to the MT” provides an article-by-article overview of the Treaty’s core provisions and offers guidance on their interpretation and implementation in domestic law. The following aredefinitions of key provisions and terms mentioned in this section.
Copyrighted Works Covered by the MT: Except for audiovisual works, the MT applies to broad categories of copyrighted works, including those of the literary, artistic and scientific domains.
Accessible Format Copy:This is defined as “a copy of work in an alternative manner or form which gives a beneficiary person access to the work.” This definition is flexible and format-neutral to ensure that print disabled individuals may use whatever format they need to have the same feasible and comfortable access enjoyed by non-print disabled individuals.For example, a language student would need a Braille copy to study the language fully, whereas an individual reading for pleasure may prefer an audio or DAISY book.
Authorized Entities: The MT empowers several actors to create and share accessible format copies, such as “authorized entities,”. "Authorized entities" are defined as “an entity (can be a government institution or non-profit organization) that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis.” Article 2(c) makes explicit that not all authorized entities need to be recognized by the government, but the recognition process can help to provide assurances for anorganization that they are entitled to MT rights. However, a ratifying country should make sure that any such process does not overburden or discourage authorized entities.It is also important to note that an authorized entityonly has to perform one or some of the above listed activities.
Beneficiary Persons:This refers to print disabled individuals who are unable to access books and other literary and artistic works in traditional formats. There are three categories of beneficiary persons: 1) blind people, 2) individuals with a visual impairment or a perceptual or reading disability (including people with dyslexia); and 3) people whose physical disabilities prevent them from reading a traditional printed book or other publication. States that ratify the MT must ensure that these three categories of beneficiaries are covered.
Exceptions and Limitations to Copyright in National Law
To achieve its overarching human rights objective, the MT requires Contracting States (states that have ratified the MT) to introduce exceptions and limitations (referred to as E&Ls in this guide) to their national laws, limiting several rights of copyright owners. The mandatory (and non-mandatory) E&Ls are covered in Section 2.5.2. – Obligations of Article 4(1) in the “Guide to the MT.”
Mandatory Exceptions and Limitations (or E&Ls):These are covered in Article 4 of the MT and specifically require national laws to have E&Ls on the following rights of copyright owners: the rights of reproduction, the right of distribution and the right of making available to the public. The MT also clarifies that beneficiary persons and authorized entities can modify copyrighted works if necessary to make such works accessible to print disabled individuals. For detailed information on implementing Article 4, see Section 2.5.3. – Modes of Implementing Article 4(1) in the “Guide to the MT.”
Commercial Availability:In Article 4 of the MT, Contracting States are given the option to limit the Treaty’s exceptions & limitations based on commercial availability. This means that a state may choose to prohibit the creation of accessible format copies under MT provisions if they are commercially available (for purchase) in that particular accessible format. The work could still be legally created in a different format. The WBU strongly believes that the adoption of a commercial availability requirement will increase the challenges and burdens for print disabled individuals and that it is inconsistent with the overall goal of the MT. However, if commercial availability is adopted as a requirement, ratifying countries should ensure that the requirement is not too onerous and that it will not deter the reproduction and sharing of accessible books. For more information, see Section 2.5.5. – The Commercial Availability Option in the “Guide to the MT”.
Remuneration Option:The MT has an option to require an authorized entity to pay a royalty or licensing fee to the copyright holder when the authorized entity creates, distributes, or produces an accessible format copy. WBU recommends avoiding this option as it creates a risk of discrimination between print and non-print disabled individuals. For instance, it may deter the creation and sharing of accessible format copies by making the process more complex and expensive.It may also unfairly decrease access to accessible works for individuals living in low-income countries. For more information, see Section 2.5.6. – The Remuneration Option in the “Guide to the MT”.
Cross-Border Exchange and Importation of Accessible Format Copies
The cross-border exchange provisions in the MT work in tandem with the exceptions and limitations mentioned above. The provisions regulating cross-border exchange are in Articles 5 and 6 of the MT and these provisions are mandatory. However, the MT does allow for some flexibility on how to implement these provisions.
Export of Accessible Format Copies: Article 5 of the MT requires Contracting States to allow authorized entities to transfer covered accessible works to other authorized entities or beneficiary persons in other Contracting States. Accessible works can be shared either electronically or physically even without the consent of the copyright owner. The export provision directly addresses the needs of print disabled individuals in countries with limited financial or technological capacity. It also helps to avoid unnecessary and inefficient duplication of production of accessible format copies. It is important to note that the option of commercial availability was not included in Article 5, meaning Contracting States do not have the authority to restrict the export of accessible format copies based on commercial availability.It is up to the importing country to determine whether the accessible works that they are importing infringe any national commercial availability clause.
Import of Accessible Format Copies: as a complement to the export provision, Article 6 of the MT allows for the same beneficiaries and authorized entities to import accessible format copies without the copyright owner’s authorization. TheMT does not require that the imported works come from a country that has ratified the MT. For information on implementing the export and import provisions, see Section 2.6.3. – Modes of Implementation of Articles 5 and 6 in the “Guide to the MT.”
Technological Protection Measures:A technological protection measure or TPM is a form of technology preventing people from illegally accessing digital works. TPMs come in different forms, including an encryption tool or password protection on a copyrighted work. However, they can sometimes prevent lawful uses of copyrighted works as well. The MT aims to balance these two concerns and calls for Contracting States to ensure that TPMs do not prevent beneficiary persons from enjoying the E&Ls provisioned in the MT. For more information, see Section 2.7. – Technological Protection Measures in the “Guide to the MT.”
Three-Step Test:This is a test for evaluating copyright exceptions and limitationspermitting the reproduction of copyrighted works even without the authorization of the copyright holder. E&Ls can satisfy the three-step test if they meet these three conditions: that such reproduction applies to 1) certain “special cases” 2) that do “not conflict with a normal exploitation of the work” and 3) do “not unreasonably prejudice the legitimate interests of the author.” E&Ls that benefit the blind have been understood to satisfy the three-step test. For more information, see Section 2.8. – Three-Step Test in the “Guide to the MT.”
Part III – Putting the Marrakesh Treaty into Practice in National Law
When discussing the implementation of the MT, it is important to keep in mind the overarching goal of the MT, which is to increase the availability of accessible format copies to print disabled individuals. Contracting States can achieve this goal by 1) creating the required legal remedies under the MT that allow beneficiaries and authorized entities to assert their rights to create and share accessible format copies; 2) empowering national human rights and Intellectual property institutions in the implementation process; 3) authorizing national institutions to engage in monitoring and enforcement activities, including assessing if print disabled individuals are enjoying their MTrights, integrating the MT into a National Action Plan, and offering training and outreach to key stakeholders; and 4) being prepared to provide information about the access and sharing rights of print disabled individuals in periodic reports at relevant international human rights bodies, such as the UN CRPD Committee, the Human Rights Council, and the UN Special Procedures.
Conclusion
The Marrakesh Access Treaty uses institutions and principles of intellectual property law to achieve human rights objectives, which is the first time this has been an explicit objective of a WIPO treaty. Since ratifying countries have obligations under intellectual property and human rights treaties, the “Guide to the MT” offers both general principles and specific policy recommendations to ensure states interpret and implement the MT consistently under both sets of commitments.The “Guide to the MT” does not purport to answer all questions that will likely arise as states implement and apply the MT, but rather aims to make clear that states must be guided by the practical needs of print disabled individuals who are the MT’s principal beneficiaries.
For further information or clarification please see the resources available on the WBU website – Marrakesh Treaty page:
Or contact the Marrakesh Ratification and Implementation Campaign Committee member from your region. Here are the Campaign committee members and their email addresses:
Maryanne Diamond, Chair:
Scott Labarre (NA/C) (USA), Co-Chair: Christopher Friend (UK) – Technical Advisor:
Kusumlata Malyk (ABU) (India)
Jace Nair (AFUB) (South Africa)
Neil Jarvis (WBU-AP) (New Zealand)
Bárbara Martin Muñoz (EBU) (Spain)
Carlos Eduardo Ferrari (Brazil) (ULAC)
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