Between Human Rights And IP: An Interview With Laurence Helfer, Co-Author Of Guide To Marrakesh Treaty Implementation 31/08/2017 by Catherine Saez, Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)When in 2013, in Marrakesh, Morocco, a new World Intellectual Property Organization treaty establishing exceptions and limitations for people with visual impairment was adopted, it was hailed by some as a miracle. Entered into force in 2016, the way states implement the treaty is of major importance for the World Blind Union (WBU) so that the treaty serves its purpose to expand access to books for visually impaired people. On 14 August, the United Nations Committee on the Rights of Persons with Disabilities (CRPD) held its 18th session. During the session, Laurence Helfer delivered a statement [doc] on behalf of the WBU, calling on states to ratify the treaty, and to avoid implementing two optional clauses that permit states to restrict or condition the exercise of the rights granted by the treaty. Laurence Helfer is co-author of a Guide: The World Blind Union Guide to the Marrakesh Treaty: Facilitating Access to Books for Print-Disabled Individuals. Alongside the CRPD session, he sat down with Intellectual Property Watch Senior Writer Catherine Saez to explain the main aims and messages of the Guide. The WBU Guide is available here. Intellectual Property Watch (IPW): How did the WBU Guide come into being and who is it intended for? Laurence Helfer Laurence Helfer (HELFER): The WBU was very active in promoting the idea of the Marrakesh Treaty [Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled] before its adoption in 2013. As with many multilateral negotiations, it is extremely challenging even to reach a consensus on the conclusion of an agreement, which is often accompanied by a number of compromises among government representatives with respect to the interpretation, scope and application of the treaty. And that was true for the Marrakesh Treaty as well. There were many different interests represented, such as states, the publishing industry, and disability rights groups. After the Marrakesh Treaty entered into force in September 2016, the WBU recognised the need for a source of recommendations, information, and guidelines that the organisation could make available to government officials, copyright and IP offices, civil society groups, and to its national affiliates – really to all stakeholders with regard to interpretation and implementation. That’s because how the treaty is interpreted and implemented will make an enormous difference in whether it is effective. IPW: What are the goals of the WBU Guide? HELFER: The treaty is a very unusual international instrument. It sits at the intersection of human rights law and intellectual property law. It serves both of those goals and attempts to seek a balance among the objectives of those two legal regimes. The Guide builds on this dual role to develop an overarching framework for the Marrakesh Treaty as an international instrument that uses copyright tools to achieve human rights ends. The Convention for the Rights of Persons with Disabilities contains a clause which says that intellectual property should not be used as a barrier or impediment to access cultural materials for persons with disabilities. The CRPD pre-exists the Marrakesh Treaty by seven years, and it provides a human rights foundation for the treaty. It is not coincidental that the CRPD, among other human rights instruments, is mentioned in the first paragraph of the Marrakesh Treaty preamble. With this background, the Guide recommends that states use the exceptions and limitations in the treaty both to achieve appropriate balance within the copyright system and to further the rights of persons with visual disabilities. In particular, the Guide provides recommendations and advice to governments to make the Marrakesh Treaty effective in practice, and to do so in a way that also gives effect to their obligations under the CRPD. IPW: What are the most important points of the Guide? HELFER: The Marrakesh Treaty recognises that some countries are much further ahead than others in two respects – first in adopting exceptions to copyright that benefit persons with disabilities, and second in having digital and hard copy libraries of accessible format printed materials. The genius of the Marrakesh Treaty is how it responds to these two issues. First, the treaty tells countries: if you don’t have a specific exception in your national copyright law for the creation and distribution of accessible format works, you have to adopt it. This removes legal uncertainty that existed prior to the treaty’s adoption. The Guide recommends that governments adopt a specific copyright exception benefitting people with visual disabilities, even though the treaty allows countries to use fair use, fair dealing, or private copying to achieve the same result. Second, the treaty encourages cross-border exchanges – exporting and importing – of accessible format copies of published works. But for these exchanges to be most effective, all Marrakesh signatories should implement the treaty in the same or very similar ways – that’s a key point that the Guide emphasises. This is especially important for remuneration and commercial availability – two optional provisions in the Marrakesh Treaty. [Articles 4.4 and 4.5 – Article 4.4 states “A Contracting Party may confine limitations or exceptions under this Article to works which, in the particular accessible format, cannot be obtained commercially under reasonable terms for beneficiary persons in that market. Any Contracting Party availing itself of this possibility shall so declare in a notification deposited with the Director General of WIPO at the time of ratification of, acceptance of or accession to this Treaty or at any time thereafter” – Article 4.5 states “It shall be a matter for national law to determine whether limitations or exceptions under this Article are subject to remuneration.”] These optional clauses raise many unanswered questions that create needless complexity, financial burdens, and legal risks for print-disabled persons. So the Guide recommends that governments should not adopt either of these provisions. But the Guide further says if you are going to adopt them, here are some issues you should think carefully about.” For example, what is “availability”, and how much “remuneration” is reasonable? Those questions have been debated in Europe (IPW, Europe, 6 July 2017) and elsewhere. In my statement to the CRPD Committee, I suggest that the Committee urge states parties to avoid both of the optional provisions as in tension with their obligations of the CRPD. IPW: Do you have examples of countries that have adopted those two optional provisions and what are the consequences? HELFER: A number of countries previously adopted laws that are consistent with the Marrakesh Treaty that don’t have remuneration clause or commercial availability. These include Singapore, India, several Latin American countries, and the United States. On the other hand, African countries are under enormous pressure by the publishers to adopt both optional provisions. If a country follows the steps that the Marrakesh Treaty authorises, there virtually no chance that it will be subject to a complaint before the World Trade Organization dispute settlement system, even if it decides not to adopt either of the optional clauses. IPW: Who should be responsible for implementing the treaty? HELFER: From WIPO’s perspective, it should be the national copyright offices and the IP offices around the world. The Guide does not disagree with that, but it argues that other institutions should be tasked with implementing the treaty, including national human rights institutions and government agencies that oversee the rights of persons with disabilities. Those offices pre-existed the Marrakesh Treaty and they already have extensive experience with issues relevant to implementing the treaty, including interactions with disability rights groups. Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related Catherine Saez may be reached at email@example.com."Between Human Rights And IP: An Interview With Laurence Helfer, Co-Author Of Guide To Marrakesh Treaty Implementation" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.