Negotiators, Stakeholders Tell Tale Of WIPO Marrakesh Treaty Negotiation, Look To Implementation

Several negotiators and other stakeholders participating in last June’s successful negotiation of an international treaty to ease access to reading material for blind and visually impaired people recently gathered in Washington, DC to look back on the remarkable and at-times bitter talks. Months later, not all agree on certain historical details, such as the US position on the draft treaty, but all agree it was a significant accomplishment.

The treaty was successfully negotiated in Marrakesh, Morocco by members of the UN World Intellectual Property Organization. Now it will be up to national governments to implement, something that may face a particular challenge in the United States.

The event was held at American University Washington College of Law on 12 September, moderated by Prof. Peter Jaszi. The archived webcast is available here.

The treaty, given the unwieldy title of the “Marrakesh Treaty to Improve Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled,” provides limitations and exception to copyright.

Justin Hughes, the lead negotiator for the United States and a professor at Cardozo Law School, said on the first panel that the US – and particularly he – was in a difficult position in between two extremes that had bigger agendas during the negotiations.

From the several-year-long negotiation, Hughes said he learned that the positions of people in the area of intellectual property rights are “more strident and more entrenched” than he realised. His effort to keep the talks focussed on the specific problem the treaty was intended to address and not expand into broader issues created some friction from both sides. It was an “extremely difficult process,” Hughes said, “far, far” more difficult than the successful negotiation in Beijing for a WIPO treaty on audiovisual performances one year earlier.

For most stakeholders, it was not just about the blind, he said. “It became a battleground for other issues.”

“I had the experience of being attacked on all sides,” he said with a smile. “Let the attacks roll on.”

And to some extent they did during the course of the panel.

Hughes said it had been “very, very difficult” from 2010 to 2012 to get the African Group countries on board with the treaty for the blind, as the group sought tied commitments to negotiate other exceptions and limitations for libraries, research institutions and the like. Those negotiations remain on the agenda of the WIPO Standing Committee on Copyright and Related Rights (SCCR).

In the first days of the June negotiation in Marrakesh, there was wide concern that the treaty negotiation might collapse, participants said.

The main concern of many stakeholders was that this treaty not become a precedent for things they do not want. In the case of the copyright industry, this was viewed as a threat to the copyright system that could lead to a waterfall of limitations and exceptions.

“This treaty is a precedent,” as it is a standalone treaty on limitations and exceptions, Chris Marcich, president of the Motion Picture Association’s Europe, Middle East and Africa office.of the Motion Picture Association of America, said, adding that that was the reason the film industry showed up to strongly lobby on a treaty about books.

In fact, he said, some tried to use the treaty as part of bigger effort to restructure WIPO itself. “There was, and continues to be, an effort to [revisit] the foundation of WIPO,” Marcich said. “This particular negotiation was a flagship for that.”

“Our job is to ensure the foundation on which the successes [of the copyright system] is built are not [unnecessarily] undermined,” he said. But, he added, “our motivations were continually challenged.”

“This is a human rights treaty,” said National Federation for the Blind (NFB) treaty negotiator Scott LaBarre, adding that it is actually mixture of a human rights and intellectual property rights treaty.

For Luis Villaroel, a researcher at Universidad Mayor in Chile who advised Ecuador in the negotiations, the treaty was not only a precedent, but it required a change in the culture of WIPO to determine whether it would be possible to have a treaty on exceptions and limitations.

Villaroel, who helped generate an early Chilean proposal on limitation and exceptions, noted that four years earlier, Hughes had convened a meeting to discuss the idea, and many of the people were still in the room at the American University event. But several had gone on to represent different governments, such as him, Hughes, and Prof. Ruth Okediji, a law professor at the University of Minnesota who joined the Nigerian delegation and helped lead the African Group.

Okediji for her part concurred that the talks were exceptionally difficult, in part because “IP issues have become impossible to talk about without the entrenchment.” Also, in the WIPO context, a treaty negotiation becomes a series of smaller negotiations, such developing-developed, or within a region itself.

Hughes pointed to Villaroel’s remark about the treaty being cause for a more fundamental change at WIPO as an example of how stakeholders tried to broaden the negotiations beyond the core purpose, and said that he, Hughes, was “in the middle.” Actually, replied Villaroel, “we didn’t see you as in the middle, but rather closer to that end of the table,” pointing to the film industry representative.

There also was some disagreement over among speakers over what type of treaty the United States was pushing, that it might settle for a “soft” instrument like a declaration.

“A lot of people had a lot of trouble with the US positions,” said James Love, president of Knowledge Ecology International and one of most vigorous treaty supporters throughout. To which Hughes countered, “We were always open to a treaty.”

LeBarre said the US came to them to suggest a soft law solution, but he said their reaction was that such an approach “smacked of a second-hand solution.” Instead, they got something substantive.

“Ladies and gentlemen, we’ve changed the world with this treaty,” he said.

Many speakers offered thoughts on how the breakthrough was achieved in the end, making what some have called a “miracle in Marrakesh.” The pressure of the Moroccan government was high among them, as it sought to avoid an embarrassing collapse, and an early deal among key negotiators on the “three-step test” for determining when copyright exceptions can be used was also mentioned several times. Many people were named and thanked for their involvement in the successful outcome, such as Vera Franz of the Open Society Foundations.

Another development that contributed to the outcome was receipt by KEI of the record of some 150 pages of communications between government officials and industry, obtained through a Freedom of Information Act (FOIA) request. Hughes said that now a “conservative group” has sent a FOIA request for communications between government and NGOs like the NFB, KEI that will be closer to 250 pages.

The NFB raised some eyebrows late in the process when it teamed up with the Motion Picture Association of America (MPAA) to publicly call for negotiators to stick to the core message. The World Blind Union, which helped develop the original draft treaty language, stuck with its basic message throughout the talks, refusing to allow what it saw as distractions. To emphasise its message, it had a table at the negotiations upon which it placed 200 books, 198 of which were in chains, and a paltry two accessible, representing the minute percentage of the world’s books that blind people currently have access to, in part due to copyright.

An NFB representative later made the point that they do not want a system where the disabled do not have to pay, as this would create an undesirable two-class system.

Implementation Imprimatur

Panellists hashed through prospects for implementation of the treaty, which was signed by more than 50 countries on the spot in Marrakesh but does not take effect until three months after 20 eligible countries actually ratify it at the national level.

Allan Adler, general counsel for the Association of American Publishers, cast some doubt on the process in the United States, describing an arcane process and noting that there are still 37 treaties pending before the US Senate, some dating back to the late 1940s. He said before the Senate could consider it, authority has to be established, including whether the US has the authority to sign it. If the president does sign it, then there could be Senate hearings, possibly questions raised. Adler also said that only about a third of WIPO member governments have enacted any sort of law specifically for visually impaired persons, the US being one of them.

“We want to ratify it,” said Shira Perlmutter, chief policy officer and director for international affairs at the US Patent and Trademark Office (USPTO) – and a music industry representative at the start of negotiations.

And the US, she said, “should be in a position to sign the treaty very soon.” Signing means they support the content and goals but it just is not a legal obligation yet.

She noted “the bright side” that the US record for ratifying intellectual property treaties is “relatively good.” Conversely, a treaty on disabilities was just defeated in the US.

The ratification process is “fraught with peril,” but the authorisation process is in the control of the administration (not Congress), and even signing “does indicate very strong support,” said Library Copyright Alliance Counsel Jonathan Band. The rest of the world understands the strange practices of the US when it comes to actually ratifying treaties, he said. And because the final treaty is so close to the so-called Chafee Amendment creating a copyright exception for the blind in the US, it should not require implementing legislation.

Advocates used the occasion to rally to push the Senate for ratification. “This is a call for us to keep the pressure up,” said one representative of the blind. “A call for us to keep the coalition together.”

To which publishers’ representative Adler said only half-smilingly, “I am not confident I sprinkled enough pessimism on this,” and described the additional difficulty of getting Republicans to support anything coming from the Obama administration before the elections in November 2014.

But looking internationally, Teresa Hackett of Electronic Information for Libraries (EIFL) said the chances of effective implementation are “good.” The 51 signers on the spot in Marrakesh were the most ever to sign a WIPO treaty immediately upon completion, she said. And there will be even more over the coming year (the treaty is open for signature at WIPO for one year after adoption last June).

Hackett raised concern that limitations and exceptions are not protected from contractual restrictions undermining their use, so the libraries will be “vigilant” to ensure these rights are not later given away.

Band noted that it would be expected that WIPO will include this in its technical assistance to countries, putting more emphasis on limitations and exceptions and not only enforcement of IPRs. He also said he did not expect European countries to have to change their laws to comply.

Hughes said one of issues that took longest to negotiate was commercial availability across borders.

For a treaty that will allow copyrighted works in special formatting for the blind to traverse borders more freely, it will be important for the few developed countries who are net exporters of the works to sign on.

Time will tell whether the miracle of Marrakesh becomes everyday practice worldwide.