How The Main Issues Of The Marrakesh Treaty For The Blind Were Solved In The Nick Of Time 01/07/2013 by Catherine Saez, Intellectual Property Watch 2 Comments Print This Post It is no secret that the negotiations were arduous leading up to the new Marrakesh treaty on exceptions and limitations to copyright for the blind, to the point where there were doubts halfway through the 17-28 June diplomatic conference that consensus could be reached. Unanimous credit was given to the facilitator of informal discussions between parties, Martin Moscoso, director of the Copyright Office of Peru (INDECOPI). During the week, tensions were high, as some contentious issues were still unresolved. Intellectual Property Watch asked Moscoso what tipped the balance between a text with a large number of open issues to a clean text with no brackets. Martin Moscoso (MM): Let me start by saying that the move to a unified text from a text in which the different positions expressed were different enough as not to have met agreement, was possible when we went from a moment of distrust to a moment of trust. That path was possible because we started to hear concerns and we tried to understand them as legitimate concerns. When we started to agree that when a particular country position was expressed as a concern it needed to be understood and then considered as legitimate, it was possible to pass to a stage where a solution would not come from a proposal put forward by one delegation but rather a search for a common goal to find the right way to tackle that concern. That has been the way we achieved this result which we applied to the different topics we addressed. Intellectual Property Watch (IPW): How did you close the gaps in the obstinate issue of commercial availability? MM: Of course, commercial availability at the beginning was considered as an important condition to ensure that cross distribution of accessible format copies was going to happen in a guaranteed manner for right holders of exporting countries, and we had to find some ways to ensure and give some sort of statements in the treaty which would allow, through the three step test for example, that that concern could be tackled. We knew that if we could find such a solution on the 3 step test concerning international obligations related to it, we could remove the condition of commercial availability which was so contentious for so many countries of the world in Article 5 (Cross-Border Exchange of Accessible Format Copies). That condition of commercial availability was kept in Article 4 so that the treaty does not affect the legitimate market which already serves beneficiary persons at national level. IPW: How about technological protection measures (TPMs)? MM: In the case of TPMs, there is a strong message with an important international impact, stating what the Beijing treaty [2012 agreement on audiovisual performances] had started to say in an agreed statement regarding the use of TPMs. The message was that the use of TPMs should not impair the exercise of exceptions and limitations generally established by law with regards to copyrights and related rights. In the Beijing treaty there was an agreed statement in a treaty establishing new rights, and the provision of the treaty was regarding the use of TPMs and the obligation to establish a legal system to protect them. However, here we needed a different approach since we were within a treaty on exceptions. We were establishing exceptions and limitations for visually impaired people and we had to be sure that this message initially stated in Beijing was going to be consistent with the formulation of this treaty language. We found a way to say that TPMs would not impair the benefits of limitations and exceptions for beneficiaries. In order to do that, a provision was drafted stating that use of TPM will not impair the exercise of the exceptions. However, with a clarification purpose, an agreed statement was added stating that TPMs might be used for authorised entities to ease their work and make possible the distribution of the accessible format copies of works. That mention is addressed in Article 7 (Obligations Concerning Technological Measures), Footnote 11 as follows: “It is understood that authorized entities in various circumstances choose to apply technological measures in the making, distribution and making available of accessible format copies and nothing herein disturbs such practices when in accordance with national law.” IPW: The three-step test gap was the first breakthrough in the conference. How did you resolve that? MM: Regarding the three step test gap, that was very, very important from the beginning because those discussions had not started here but in Geneva. We started solving the problem in Geneva in February and tried to find a way to give some insurance that all existing international obligations of contracting parties were going to be respected regarding the 3 step test. We could also bear in mind existing flexibilities of the use of the 3 step test, for example those provided for LDCs in the TRIPS agreement. We understood we could find an alternative which tries to accommodate different international obligations related to the three step test. We tackled the Berne gap, we tackled the different standards of contracting parties who just ratified the Berne Convention, then we tackled the issue of countries who just ratified the TRIPS, and took into account countries which have ratified the WCT. We found a solution for each one of those cases. That solution shows flexibility and it gives consistency with other international agreements. That is how we found a solution to the 3 step test. IPW: Another difficult issue was the demand by beneficiaries that direct distribution to individuals be allowed. MM: Concerning direct distribution, at the beginning it was considered to be a good way to give immediate benefit for those countries which have not established yet authorised entities, but of course this could not be done without some sort of guarantees. Concerns regarding the misuse of this direct distribution option were to be addressed. Then we found additional assurances. One of them is in Article 9 regarding Cooperation to Facilitate Cross-border Exchange. It was considered that contracting parties could assist those authorised entities in complying with the requirements indicated in the definition of authorised entities, which establishes some obligations that they have to comply with if they want to be considered as an authorised entity. In Article 5, an agreed statement was also added on the specific issue of direct distribution. It was the way to reach the right balance tackling those concerns, reducing and finally eliminating resistance for that option. This agreed statement stands under footnote number 7, which states: “it is understood that to distribute or make available accessible format copies directly to a beneficiary person in another Contracting Party, It may be appropriate for an authorized entity to apply further measures to confirm that the person it is serving is a beneficiary person and to follow its own practices as described in Article 2” (definitions). IPW: The right of translation, which was a more recent issue, was also fiercely debated. MM: The right of translation opened a big discussion. It was considered to be out of the scope of this treaty. We started to hear concerns on the potential impact on moral rights and some countries shared their concerns that without this right of translation into the treaty, it could be a barrier for some communities, not only of national languages but indigenous and native languages in minorities in different countries, which could be beneficiaries of treaty. When we started to understand each other about legitimate concerns, we found a nice solution in the exceptions provided by the Berne Convention adding a specific mention to right of translation there. Having such a reference in this treaty gives comfort to countries wishing to apply this right. The right of translation has been inserted in an agreed statement to paragraph 3 of Article 4 (National Law Limitations and Exceptions Regarding Accessible Format Copies). Footnote 4 says, “it is understood that this paragraph neither reduces nor extends the scope of applicability of limitations and exceptions permitted under the Berne Convention, as regards the right of translation, with respect to persons with visual impairments or with other print disabilities.” Paragraph 3 also refers to Articles 10 (General Principles on Implementation) and Article 11 (General Obligations on Limitations and Exceptions). As we see, this common effort was a collective work, gathering creativity and flexibility coming from different delegations sharing a common goal: to send a message to the world that copyright is balanced and that it might be effective in both preserving legitimate rights of authors and ensuring access to culture. 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