Marrakech Treaty: A Landmark Tracing a New Horizon in International Copyright Law

Por: Diego Acosta - Asistente de Investigación

On June 2013, the international community celebrated the adoption of the Marrakech Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired and otherwise Print Disabled. The instrument was considered by many as an accomplishment that would bring changes to the functioning of copyright law. According to scholar Denise Rosemary Nicholson from the University of the Witwatersrand (South Africa), adopting the treaty was possible thanks to the inclusion of other members of society in the discussions leading to the conclusion of the agreement[1]. Traditionally, participation in the debate of copyright issues was reserved to government delegates and industry representatives. As a result, it was difficult information-users’ interests to be taken into consideration. But since 2005, when representatives of libraries, archives, researchers and disabled persons started to take part in WIPO (World Intellectual Property Organization) meetings, the result was a noticeable shift in policies and approaches[2]. The contribution of these groups has been important bearing in mind that it was the World Blind Union, which presented the proposal for the drafting of the Marrakech Treaty, and that without their constant lobbying such agreement could not have been reached[3].

The treaty in question seeks to address blind people needs and others who have some reading restrictions. The difficulties that these people undergo while not being able to read as other people can, reduce their access to knowledge and information. Obtaining information is critical to have the capacity to fully exercise one’s own rights and to be empowered to partake in decisions involving oneself and society. Perhaps this can explain why the majority of blind and visually impaired persons often do not have the possibility to enjoy the maximum quality of life. As to the facts concerning this situation, the Holy See, which was one of the promoters of the treaty, while intervening in the discussions pointed out that “285 million people are visually impaired worldwide according to estimates of the World Health Organization and approximately 90% of them live in developing countries. Only 1% of the books in Developing and Least Developed countries, however, are available in formats accessible to blind people. In the Developed countries as well visually impaired individuals have access to only 5 percent of published books.[4]”  The current scarcity of accessible formats for the blind and visually impaired is often referred to as “book famine.[5]”

To deal with this challenge, the Marrakech Treaty contains various provisions in an effort to maximize availability of accessible formats for the blind and visually impaired. In this sense, the treaty calls on Member States to establish within their national legislations a regime of limitations and exceptions to copyright, thus enabling the creation of accessible formats without the need of authorization from the right holder[6]. This directive arises from the detection of a current lack of precepts of this nature or otherwise ambiguous in many countries around the globe.  In addition, the treaty also contemplates the possibility of cross border export of accessible formats[7]. This would increase the transfer of materials from developed countries to developing countries. There is also an acknowledgment in that the existence of technological protection measures to defend against copyright infringement, must not be an obstacle for the operation of limitations and exceptions established in favor of the blind and visually impaired[8]. In recognition of the copyright holders’ interests, the treaty provides that published works must not be misused or distributed in different terms to those contemplated in the agreement[9]. It also opens the possibility for the payment of royalties to copyright holders for the conversion of their works to accessible formats[10].

 Colombia was one of the states that signed the treaty on June 28, 2013. Currently, various Non-governmental organizations in this country are working to communicate the advantages and benefits of this treaty to different sectors of society[11]. The goal is to elaborate documents and establish channels of information that could be accessed not only in Colombia but in other countries of the region as well.

But for the treaty to be fully operational it needs to enter into force. For this to happen, 20 ratification instruments have to be deposited by different states[12]. Although signature of the treaty demonstrates an intent of the will to apply the provisions contained therein, only its entry into force together with a ratification would be sufficient for a state to be legally abided by its precepts. At the moment, in the Latin American region, the country that appears to be taking more steps to ratify the Marrakech treaty is Uruguay[13].

[1] NICHOLSON ROSEMARY DENISE, Treaty for Visually Impaired Persons (TVI) and treaty proposal on Copyright Limitations and Exceptions for Libraries and Archives (Tlib): implications for the Developing World. Available at: http://library.ifla.org/239/1/209-nicholson-en.pdf

[2] Ibídem

[3] Ibíd

[4] KNOWLEDGE ECOLOGY INTERNATIONAL, Intervention of the Holy See: WIPO Diplomatic Conference on a Treaty for the Blind. Available at: http://keionline.org/node/1752

[5] Ibídem

[6] WIPO, Marrakech Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired and otherwise Print Disabled – Article 4. Available at: http://www.wipo.int/edocs/mdocs/diplconf/en/vip_dc/vip_dc_8.pdf

[7] Ibídem, Article 5

[8] Ibíd, Article 7

[9] Ibíd, Article 11

[10] Ibíd, Article 4.5

[11] GUZMÁN MEJÍA LUISA FERNANDA, Translating the Legalities of Rights. In: Knight News Challenge. Available at: https://www.newschallenge.org/challenge/2014/submissions/translating-the-legalities-of-rights

[12] WIPO, Marrakech Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired and otherwise Print Disabled – Article 18. Available at: http://www.wipo.int/edocs/mdocs/diplconf/en/vip_dc/vip_dc_8.pdf

[13] PRESIDENCIA REPÚBLICA ORIENTAL DEL URUGUAY, Uruguay será el primer país en ratificar el Tratado de Marrakech. Available at: http://www.presidencia.gub.uy/comunicacion/comunicacionnoticias/tratado-de-marrakech