Thursday, August 08, 2013

My take on the WIPO Marrakesh Treaty/1

Hundreds of millions of people worldwide encounter severe distress in trying to access the written word in their education and private life. Only by employing appropriate technologies, such as for instance the method first developed by Louis Braille in 1829, written works can to be made accessible to people who suffer from print disabilities. The creation of accessible versions of copyrighted works and their distribution to the beneficiary persons, however, normally require the consent of the respective rightholders. 

Whilst international treaties and conventions in the area of intellectual property generally permit exceptions and limitations to the rights of the IP holder to be provided, their nature and scope have been largely left to national legislators to determine. By 1982, only seven member States of the World Intellectual Property Organisation (WIPO) enacted provisions in that respect, and twenty-five years later exceptions and limitations for the benefit of print disabled person were present only in 57 member States - out of the then 184-strong overall membership.

According to a study commissioned by the Royal National Institute of the Blind and covering books published in the United Kingdom in the period  2004-2010, just some 7 per cent of them were accessible to blind people and others living with a print disability, 0.25 per cent of which  in traditional formats like hard copy braille and human voice audio, and 6.80 as accessible e-books.   Unsurprisingly, the situation is considered to be much worse in developing and least-developed countries, where the majority of persons with visual impairments or with other print disabilities live.

In 2006, the text of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) was adopted and entered into force two years later. The text of Convention strongly reaffirms the right to read for people with disability. The WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled, concluded on June 27, 2013, aims at addressing the self-evident paucity of available works in accessible format copies (“book famine”). 

The newly adopted Treaty sets an elaborate international legal framework in the form of, first, an obligation for contracting parties to adopt in their respective national legislations exceptions and limitations that permit the reproduction, distribution and making available of published works in accessible formats. Second, the Treaty provides for the cross-border exchange of accessible format works created based on limitations and exceptions.

The Marrakesh Treaty takes a resolute step towards a more satisfactory balance between the print disabled persons’ legitimate need to access copyrighted works and the necessary protection of the rights of the copyright holders. The Treaty is also a première on the international stage, being the first multilateral, binding legal instrument primarily devoted to the establishment of exceptions and limitations in copyright law. In fact, much of the considerable efforts put into the development of the international copyright framework so far focused almost exclusively on defining and protecting the rights needed to promote the important aim of encouraging and rewarding creativity. Restriction or limitations upon authors justified by the broader “public interest” were almost exclusively left to national legislators, albeit within the boundaries set by the relevant treaties and conventions.

The so-called three-step test, arguably the most significant among those boundaries, took central stage throughout the nearly five years of arduous Treaty negotiations. The final text adopted in Marrakesh contains one direct reference to the test in the Preamble, two in Agreed statements, Article 5.4 deals with the so called "Berne gap", and Article 11 sets the obligation, for the Contracting Parties adopting the measures necessary to ensure the application of the Marrakesh Treaty,  to comply with the three-step test as formulated in the different international mandatory legal instruments under which they are bound. While the language of the three-step test has not changed since its original formulation in  the1967 Stockholm Revision of the Berne Convention, its interpretation remains highly controversial. In this respect, the adopted Treaty is also particularly relevant since it sheds some light on questions that timely, subsequent revisions of the Berne Convention should have already helped clarify.

(to be continued, hopefully soon; ACW).

For further material see the label visually impaired and copyright (actually a misnomer, in light of the final Treaty)

All future episodes here.