Copyright Exceptions for Access to the Blind – Marrakesh Treaty

After several years of continuous effort, the MARRAKESH TREATY TO FACILITATE ACCESS TO PUBLISHED WORKS FOR PERSONS WHO ARE BLIND, VISUALLY IMPAIRED, OR OTHERWISE PRINT DISABLED was adopted in 2013. So far, 9 countries, including India, have ratified the Treaty,  while 2 have acceded to it. The Treaty will come into force when 20 countries ratify it.

Background

A WHO report estimates that there are more than 285 million blind or visually disabled people in this world. It is estimated that around ninety percent of them live in developing and least developed countries. Out of total books published, one study reports that only five percent are accessible to the blind. The percentage is only one percent in developing and least developed countries. This has been termed as the ‘Book Famine.’

One of the road blocks in enabling access of books to the blind comes from copyright protection to printed works. To overcome this hurdle, the World Blind Union and other stake holders, Government and Non-Government Organisations, have been endeavouring to create an exception to copyright infringement for the purpose of facilitating access to the blind. The efforts finally culminated into the Marrakesh Treaty in 2013.

Primary Objectives

The Treaty starts by recalling the principles of non-discrimination, equal opportunity, accessibility, full and effective participation and inclusion in society, proclaimed in the Universal Declaration of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities. The primary objectives of the Treaty are:

To create limitations and exceptions in copyright law for facilitating access to the blind, visually impaired and also, other print disabled;

To enable creation and sharing of accessible works;

To prevent duplication and facilitate sharing of works beyond boundaries; and

To ensure that the exception is within the framework of the international copyright system and complies with the Three-Step test as laid out in the Berne Convention and later provided in TRIPs Agreement, WCT, etc.

Works Covered

The Treaty covers only literary and artistic works. The definition of works specifically mentions: text, notation and/or related illustrations. In a way, the scope of the Treaty is quite narrow from the works perspective. Other works such as photographic works, cinematographic works, sound recordings, dramatic works, broadcasts, performances, etc., have been kept out of its scope. Also, the Treaty covers only published works.

Blind and Print Disabled

The beneficiaries under the Treaty include:

1. Blind persons;
2. Persons with visual impairment that prevents them from reading like a normal person; and
3. Persons, who cannot hold or manipulate a book, or move eyes like a normal person to read a work.

The exception under the Treaty is aimed at visually disabled persons, people with dyslexia, etc. It does not cover people with auditory issues, mental disability, etc., who also have problems with accessing printed works.

Limitation or Exception

The Treaty requires Member Countries to make a limitation or exception to their national laws to enable access to printed works in formats accessible by the visually and print disabled.

Rights to be given in the limitation or exception are:

Right of Reproduction;

Right of Distribution;

Right to make the work available to the public; and

Right to make changes to a work in order to convert it into accessible format.

Member countries may also give the right of public performance to enable accessibility as a part of the limitation or exception.

Limitation or Exception for Authorized Entities

The Treaty requires member countries to make an exception or limitation for authorised entities. Under this exception, organisations recognized, funded or permitted by the Government may make and distribute copies of works in accessible formats to the blind and print disabled. Such works may be distributed by non-commercial means, or by any means of electronic communication along with other means. Organisations may carry out such activities only if:

1. They have a lawful copy of the work, or access to the work;
2. Changes not required for converting into accessible format are not made;
3. The copies are given exclusively to the blind, visually disabled, or print disabled; and
4. The activities are carried out on a non-profit basis.

• Caretaker Exception

A disabled person or her/his caretaker can make a copy in accessible format for personal use of the disabled person. In such a case also, the disabled person must have a lawful copy of the work in her/his possession.

• Additional Limitations/Exceptions

Member Countries are free to create other exceptions or limitations to facilitate access to the disabled. The limitations or exceptions must however comply with the Three-Step Test.

Remuneration and Commercial Availability

Exceptions or Limitations in a national law may be subject to whether the accessible work is commercially available from the copyright owner under reasonable terms. Payment of remuneration to copyright owner may also be incorporated in the exception or limitation.

Cross-Border Exchange

The Treaty requires national law to permit exchange of works in accessible formats across borders of member countries. The exchange of copies may be between authorised organisations, or between an authorised organisation and a disabled person. The exchange is permitted only if:

1. The accessible works are exclusively distributed to disabled persons; and
2. The limitations and exceptions satisfy the Three-Step Test.

The Treaty also requires members to create an exception in national law for import of accessible copies of works for the benefit of a disabled person.

The Treaty has several other provisions addressing technological protection measures, privacy, co-operation, etc.

Three-Step Test

A member country must comply with the three step test in line with its obligations under other copyright conventions, treaties and agreements. The three steps of the test include:

1. The exception or limitation must be a special case;
2. The exception or limitation does not conflict with the normal exploitation of the work; and;
3. The exception or limitation does not prejudice the legitimate interests of the copyright holder.

Quick Comments

While a Treaty for merely creating an exception is commendable, the Marrakesh Treaty falls short on several counts.

1. The Treaty should have taken into account the interests of persons with other disabilities, with respect to access to published works. This is discrimination at some level;
2. The Treaty covers only one among many inaccessible works; and
3. The Treaty addresses some unnecessary issues like privacy, and does not adequately cover issues emerging from modern technology.

Despite its drawbacks, the Treaty is an excellent start for the accessibility revolution, which will certainly have a telling impact on exploitation of copyrighted works.

Contributed with the support of the IP Strategy and Consulting Division of BananaIP.
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