Over 50 Countries Sign Marrakesh Treaty On Copyright Exceptions And Limitations For The Blind

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Marrakesh treaty for the blindMarrakesh, Morocco – The 28 June signing of the new international treaty to improve access to published materials for the visually impaired brought relief to the beneficiaries and satisfaction to delegations. But some underlined the need to sign and ratify the new treaty.

On the final day of the World Intellectual Property Organization diplomatic conference, held from 17-28 June, fifty-one countries signed the treaty to the loud applause of the plenary, in particular from the visually impaired people. A large number of developing countries, notably from Africa and Latin America, signed the treaty. A few developed countries signed the treaty, such as Switzerland and the United Kingdom.

Mustapha Khalfi, the Moroccan Minister of Communication and president of the diplomatic conference, said the initial list of 37 issues was sobering and the slow initial progress in the negotiations was even more troubling than the list. The spirit of compromise helped resolve those issues, he said, and urged countries to ratify and implement the treaty, with the aim of ratification within months.

Last-Minute Flap over Treaty Name before Adoption

As the closing plenary was waiting to proceed, some last-minute negotiations were held. The text was released in late morning with a new title: “Marrakesh Treaty to Improve Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled.” The mention of limitations and exceptions had disappeared from the title. According to sources, this was at the request of the United States and the European Union.

Mustapha Khalfi (left), the Moroccan Minister of Communication congratulating Melanie Brunson (right), American Council of the Blind. (Photo Credit: Catherine Saez, IP-Watch)

Mustapha Khalfi (left), the Moroccan Minister of Communication congratulating Melanie Brunson (right), American Council of the Blind. (Photo Credit: Catherine Saez, IP-Watch)

Minutes before the adoption of the draft treaty, Khalfi gave some clarification on footnote 9 of Article 5.4b (Cross-Border Exchange of Accessible Format Copies). The footnote reads: “It is understood that nothing in this Treaty creates any obligations for a Contracting Party to ratify or accede to the WCT [WIPO Copyright Treaty] or to comply with any of its provisions and nothing in this Treaty prejudices any rights, limitations and exceptions contained in the WCT.”

Khalfi said when the agreed statement refers to contracting parties, it only refers to those contracting parties to the Marrakesh treaty who have not yet joined the WCT and thus have no existing obligations under that treaty when member states ratify or accede to the WCT they are then bound by the terms of that treaty.

India, on behalf of the Asian Group, remarked that the title of the treaty had changed and asked when this was discussed in main Committee 1. Khalfi said the issue had been examined in the Steering Committee, that after consultations in regional groups it appeared that the title should reflect the content and goals of the treaty. The title was amended, he said, in order to facilitate the ratification of the treaty, facilitate the communication regarding the treaty, and in order to gain support for it.

The Indian delegate said as Asian Group coordinator that she was not consulted on the issue, but India had no intention of breaking the consensus and would accept the new title if everyone else agreed with it. She also proposed that the word “improve” in the title be replaced by “facilitate,” which was agreed to by Egypt and the United States. The treaty was thus adopted to much cheering.

Pressure had multiple faces in the negotiations. For example, the publishing industry was pushing for the inclusion of measures to protect the interests of right holders. For African countries, it was important to achieve a treaty for which they were demandeurs on African soil, and for the host country it was equally important.

According to sources, some members of Group B, the developed country group, showed a more flexible approach, such as Australia and Switzerland, for example on commercial availability. After the enthusiasm and relief provided by what was hailed as an historic agreement, the tone was still very positive, but some developing countries said that a lot of compromises had to be made to accommodate the request of the European Union and the United States.

The treaty sends a message to the world Khalfi said, that globalisation has a human face. “There are no winners and no losers, this treaty is for everyone,” he said. Some thirty-seven points of contention were overcome, he said, adding that given the treaty, he would not close the Marrakesh airport, which he had said Morocco would do if a treaty was not agreed on by Friday. “We won’t have to do it,” he said jokingly, inviting delegates to stay for as long as they liked.

Developing Countries Ask Speedy Adoption

The floor was then open for delegations to make their final statements, all of which greeted the achievement, and a number of them called for the quick adoption of the treaty.

Algeria, on behalf of the African Group, said the treaty was only the first step “in the long march” to reach balance in the international intellectual property system. “A system which has been, for too long, taking care mostly of the private interests of right holders sometime at the expense of the larger public interest,” he said. It represents a shift in the IP regime that allows access to copyrighted work without prejudice of copyright holders, he added.

“Compromises and concessions were made to reach this agreement and for this very reason and every delegation can rightly claim a part of this success,” he said.

A lot is left to be undertaken to meet the challenge to implementing this agreement so as to make a real difference on the ground, he added and it is “our expectation that all members of WIPO expedite their accession to the treaty.” This request was echoed by the “Asia and Pacific Group”, and the Central European and Baltic States Group.

Group B hailed the success of the diplomatic conference, the fact that the treaty was “exceptional” and balanced, and said after the Beijing momentum, there now was a “Marrakesh spirit.”

The US Department of State, in a 28 June press release, said, “Adoption of the treaty is the first step, and the Administration looks forward to working with Congress to secure advice and consent to ratification of the Treaty.”

The Group of Latin American and Caribbean countries, which were the first supporters of the treaty, expressed satisfaction at the work done. The challenge continues, the delegate of the Dominican Republic said on behalf of the group, the second phase of this process is the responsible implantation of the treaty.

A long list of countries wanting to take the floor pushed the plenary into the evening.

Brazil said in their statement [pdf] “The path that has led us to this day was not easy. During four years we have faced intense and complex debates. Many expressed concerns with the possible negative impacts that the new treaty could have in the international intellectual property system, such as the uncontrolled access to works in the digital environment.”

“With the passing of time, however, these concerns were overcome as debates deepened and innovative solutions emerged, with a view to guaranteeing the just protection to the rights of creators,” Brazil said.

“With this treaty, WIPO embraces in its actions a humanitarian vision, fulfilling its vocation as a specialised agency of the United Nations in the regulation of intellectual property,” Brazil said, urging countries to ratify the treaty.

Twenty ratifications are necessary for the entry into force of the treaty.

Algeria said that in most developing countries, it was not the lack of political will but scarcity of material and financial hurdles that prevent countries from integrating visually impaired people.

The United States, and the European Union, which were described by many as having been the most reluctant to a treaty in the early days, gave lauding statements. The European Union released a press release in which European Commissioner Michel Barnier said, “Great news today: our collective effort has made it possible to adopt a new international treaty that means that finally, the visually impaired and print-disabled community will be able to have access to the same books as other people. For too long, this community has been denied the access to knowledge and culture they are entitled to in exactly the same way as everyone else.”

Khalfi congratulating Brunson. (Photo Credit: Catherine Saez, IP-Watch)

Khalfi congratulating Brunson. (Photo Credit: Catherine Saez, IP-Watch)

Justin Hughes, chief negotiator for the US, said in his statement [pdf] that the US delegation “believes this Diplomatic Conference has indeed produced something truly excellent.”

Hughes said that crafting an international instrument on copyright exceptions is one step on the road to ensuring that the blind and others with print disabilities can get the information and education they need and live independently as full citizens in their communities.

“Sometimes,” he said “government officials think that, when they pass legislation or create a treaty, the problem they are addressing goes away.”

“Not only will Member States have to ratify this treaty,” he said, “but scores of countries need to join the approximately 60 Member States that have clear exceptions in their national copyright laws for the blind, additional authorized entities will have to be established and capacity built.”

China told Intellectual Property Watch that the country “is very pleased to see the conclusion of this Treaty.” “China has one of the largest populations with visual impairment and other printed disabilities in the world,” the delegate said.

“The Treaty has far-reaching impact since it is the first treaty on limitations and exceptions in the field of intellectual property and it brings sunshine to the blind world. We are also very happy to find that the ‘Spirit of Beijing’ appeared again and the follower of hard work blossomed here in Marrakesh,” they said.

According to sources from developing and developed countries, the lack of a clause on technical assistance in the treaty can be detrimental to its implementation since a number of authorised entities will need capacity building.

Civil Society

A number of civil society groups and other stakeholders also took the floor, such as the TransAtlantic Consumer Dialogue (here), the International Federation of Reproduction Rights Organisations (here) [pdf], and visually impaired persons.

Marcus Low, on behalf of the Civil Society Coalition, said that through the exceptions and limitations awarded by the treaty, “we recognise the human rights of blind people.”

“However,” he said, “as important and historic as it is, this treaty is only a means to an end,” calling countries to ratify the treaty “as a matter of extreme urgency.” “I want to express my deepest respect and gratitude to those negotiators who stood firm on behalf of blind people and refused to give way under tremendous pressure.”

In its closing statement, Knowledge Ecology International hailed the treaty but said, “It is also unfortunate that nearly all negotiations on the text took place either off the record, or in secret. The records of the diplomatic conference will be very limited, with little information about country positions or the rationale for various articles,” adding, “That said, with all of these flaws, WIPO is now the most transparent forum for intellectual property norm setting, by far.”

According to sources, the list of signatories is: Afghanistan, Bosnia and Herzegovina, Brazil, Burkina Faso, Burundi, Cambodia, Cameroon, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Côte d’Ivoire, Cyprus, Democratic People’s Republic of Korea, Denmark, Djibouti, Dominican Republic, Ethiopia, Ghana, Guinea, Haiti, Holy See, Jordan, Kenya, Lebanon, Luxembourg, Mali, Mauritania, Mauritius, Mongolia, Morocco, Nepal, Nigeria, Panama, Paraguay, Peru,  Republic of Moldova, Sao Tome and Principe, Senegal, Sierra Leone, Sudan, Switzerland, Togo, Tunisia, Uganda, United Kingdom, and Uruguay.

Catherine Saez may be reached at info@ip-watch.ch.

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Comments

  1. Bob Martinengo says

    As this article quotes Justin Hughes, “Sometimes government officials think that, when they pass legislation or create a treaty, the problem they are addressing goes away.” In this case, not only will the problem not go away, the treaty will not come close to solving it, and in some ways will make it worse.

    From the start, critical analysis of this problem has been sorely lacking. Here are some issues that were barely touched on by either side:

    – The true cost of producing accessible formats, and where that money is to come from.
    – The desire of individuals in developing nations to access their own countries literature, before importing someone else’s.
    – The preference of some blind people to listen to books recorded by human readers, rather than electronic text rendered in synthetic speech.
    – The portrayal of blind people as victims of a ‘book famine’ and dependent on charity, rather than independent users of technology that can access almost any book published today.
    – The United States’ experience with its own copyright exception, and how it failed to solve the issue of accessibility for textbooks.
    – The history of organizations such as Recording for the Blind, which flourished for 45 years without a copyright exception by building relationships with publishers to obtain permissions.

    To summarize, the most cost-effective, sustainable, and socially progressive path towards equal access is to align the needs of publishers with those of the print-disabled, rather than to bypass publishers with a copyright exception. The notion of ‘building capacity’ to exploit the copyright exception in the treaty is essentially investing in a secondary, segregated publishing system. Worst of all, a copyright exception does not create accountability, it disperses it – legislation at its finest.

    Thanks to IP-Watch for well-written coverage of this issue.

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