New Guide Shows How Best To Implement Marrakesh Treaty So Books Are Accessible To Visually Impaired

The World Blind Union (WBU) has recently issued a guide to the World Intellectual Property Organization treaty providing copyright exceptions for visually impaired people. The treaty was widely hailed, but the way it is implemented could be a gamechanger, and the WBU provides advice to all stakeholders, and in particular governments, so that the treaty is interpreted and implemented to the best interest of the visually impaired. The union also warns against the implementation of two optional provisions, which they say could run counter to the aims of the treaty.

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled was adopted on 27 June 2013 and entered into force on 30 September 2016. At press time, 91 countries had signed the treaty, 31 of which had ratified it.

The treaty is the only international instrument exclusively providing copyright exceptions and limitations. It was designed to provide such exceptions for the benefit of people with print disabilities, who number an estimated 300 million in the world. One of its main aims was to enable cross-border exchange of books in special formats.

The World Blind Union (WBU) Guide to the Marrakesh Treaty: Facilitating Access to Books for Print-Disabled Individuals is authored by Laurence Helfer, Molly Land, Ruth Okediji, Jerome Reichman, and is available for download, and in print copies from Oxford University Press.

According to the guide, governments in ratifying countries “will face a variety of legal and policy choices as they decide how to incorporate the Marrakesh Treaty into their national legal systems. These choices will determine whether the treaty realises its overarching objectives.”

The treaty, the guide says, sits at the crossroads between the international human rights and international intellectual property regimes. In particular, the guide refers to the Committee on the Rights of Persons with Disabilities (CRPD), which predates the Marrakesh Treaty, and was adopted by 168 countries as of October 2016, which requires that IP laws do not prevent disabled persons from accessing books and other cultural materials.

Marrakesh Treaty in National Laws

Chapter 3 of the guide provides suggestions for putting the Marrakesh Treaty into practice in national law.

For example, the guide states that beyond incorporating the treaty into national law, states must also provide remedies for violations of these rights. According to the guide, such remedies should include injunctions, damages, and other forms of relief.

Remedies, the guide says, provide beneficiaries and authorised entities with the legal certainty and confidence to make, distribute, and share accessible format copies. Authorised entities may be government or public institutions, or non-profit organisations, or groups that provide a range of services to individuals with print disabilities, the guide explains.

It further adds that the Marrakesh Treaty “recognizes a much larger group of public and non-profit groups and bodies – including schools, libraries, healthcare organizations, and civil society groups – whose activities are intended to benefit society as a whole, including individuals with print disabilities.”

The guide also advises states to adopt laws and policies that “discourage copyright owners from invoking legal proceedings to impede print-disabled individuals and authorized entities from making and sharing accessible format copies.”

States are also asked to ensure that “copyright owners do not use contracts to prevent beneficiaries and authorized entities from creating accessible format works, for example by including clauses that restrict the use of electronic materials or prohibit circumventions of TPMs [technological protection measures].”

Monitoring of Progress

Further, the guide requests that states monitor the extent to which print-disabled persons are enjoying increased access to books and other works.

According to the guide, domestic institutions in charge of overseeing the treaty should have the authority to pursue remedies on behalf of beneficiaries. “Many states empower governmental bodies to seek direct enforcement of rights, both human rights and intellectual property rights. Such a body might monitor the exercise of, and investigate and remediate violations of, MT [Marrakesh Treaty] access and sharing rights…”

“Marrakesh Treaty Contracting Parties should be prepared to provide information about the access and sharing rights of print-disabled individuals in periodic reports to the United Nations bodies that monitor state compliance with human rights,” the guide adds.

Those UN bodies are the CRPD, the UN Human Rights Council, and the UN special procedures, it says.

Keep Away from Harmful Optional Provisions

According to the guide, the two most important of these optional provisions are found in Article 4(4) (commercial availability requirement), and in Article 4(5) (remuneration requirement).

The commercial availability allows a country to ban the creation of accessible format copies if the copyright owner has already made the work commercially available in that particular format, the guide explains.

The remuneration requirement provides for a state to ask compensation as a condition of creating or distributing accessible format copies, it says.

“The Guide considers these optional provisions to be in tension with the MT’s overarching objectives,” it states. “Accordingly, the Guide urges states to eschew these optional measures.”