Ms. Raniyal Niyada is the Editor-in-Chief at LJRFVoice.com and also a Research Scholar at National Law School of India Univeristy.
INTRODUCTION
Due to the global book famine faced by the population of the developing and least developed country, hundreds of millions of persons with print disabilities are deprived of access to basic information worldwide. According to the World Intellectual Property Organization (WIPO) reports that the visually impaired have access to merely 5 percent of published books. While the global movement to reevaluate copyright laws for the digital age was quickly pacing, a strong opportunity to harmonize the deficient patchwork of national and international copyright laws to counter the book famine presented itself. After years of stalled progress, WIPO adopted the landmark Marrakesh Treaty on June 27, 2013, and entered into force on September 30, 2016. The objective of the treaty is to alleviate copyright barriers to access for the print-disabled worldwide. Of all the rights and reservations access to knowledge has always been at the forefront of the international agreements on intellectual property.
IP is perceived as this opportunity to gain more access and exchange of knowledge for the limited monopolistic rights that are granted. However, due to the visually impaired and other print disabled live among the low-income countries, even when there is a need there is no demand. Hence most of the publishing housed refuse to cater to their needs.
It was in order to address this that the VIP treaty came into. The treaty mandates the state parties to provide in their national legislations as an exception or limitation so as to facilitate access to beneficiaries. The treaty, though still refuses to address the exhaustion of copyright and related issues, has provided a platform to build upon cross border exchange of accessible format copy. In the present discussion two main concerns are addressed. The first one is a discussion on Marrakesh Treaty as an access facilitation tool. The second question that is being addressed is the critical examination of the impact of the Marrakesh Treaty on the author’s and the copyright holder’s rights.
MARRAKESH TREATY
Of all the benefits of the Intellectual property regime, access to the knowledge has always remained on the forefront. This trend has been ever present, and could be traced back to Statute of Anne. The statute foster creativity and by allocating certain exclusive rights. However, access to knowledge has been set up as a precondition for the allocation of this exclusive rights.
In order to facilitate this such rights has been allocated with certain limits. Certain inherent flexibilities, in the guise of exceptions and limitations has been incorporated as part of IP regime to promote access. The flexibility allows national legislators to address various social needs in the light of the differing circumstances in each country. The advent of the printing press, the spread of widely disseminated written discourse has bred heightened innovation as individuals build upon others’ innovations through information exchange via mass printing technology. However, a large group of the world population has been left behind in this Industrial bloom.
GLOBAL BOOK FAMINE:
The immediate History of Marrakesh VIP treaty can be traced back to the global food famine. Though the advancement in technology has driven a digital revolution which has accelerate the dissemination of knowledge, facilitating access to information, millions of people globally are deprived of access to basic information.
Ironically, even in this advanced technological era, written disclosure remains the basic and important form of knowledge and information exchange, which is vital to a well-functioning of democratic society and continued societal growth. Most of the society’s most sophisticated knowledge still remain as written disclosures. The visually impaired persons (“VIPs”) lack meaningful access to the vast majority of such written discourse in accessible formats, particularly those VIPs residing in developing countries. The barriers to copyrighted works crafts disadvantage to individuals with visual impairments and precipitate a global “book famine”. According to World Health Organization statistics, there is currently an approximately of 285 million visually impaired persons (VIPs), worldwide. Out of this population 90 percent live in developing countries. The World Intellectual Property Organization (WIPO) reports that the visually impaired have access to merely 5 percent of published books. This lack of access creates an information crisis that is rife in developing countries where as few as 0.5 percent of copyrighted works are available to the visually impaired. Article 19 of the International Covenant on Civil and Political Rights protects freedom of expression, including the “freedom to seek, receive and impart information and ideas of all kinds.” This right belongs to all persons, whether or not they are visually impaired. The 2006 United Nation General Convention on the Rights of Persons with Disabilities recognizes the right of people with disabilities to enjoy equal access to educational, cultural, political, and employment-related knowledge and materials, in accessible formats. Almost all of the visually impaired experience some form of discrimination, whether institutional, environmental, attitudinal or a combination of all three.
This has lead them to experience almost universal marginalization, exclusion and socio-economic disadvantage. In comparison to fully sighted persons, persons with disabilities are less likely to enter, remain and succeed in school and are more likely to experience ill health, injury, violence, exploitation, unemployment, poverty and premature death.
HISTORY OF MARRAKESH TREATY
The journey to Marrakesh began in 1981-82, with the Working Group on Access by the visually and Auditory Handicapped to Material Reproducing Works Protected by Copyright by the UNESCO and WIPO jointly. Followed by this, in December 1983 a Joint session of Executive Committee of the Berne Union and The Intergovernmental Committee of the Universal Copyright Convention were conveyed. More studies subsequently followed, including those by Sam Ricketson and Judith Sullivan , which piqued the international community’s interest in this issue. In addition to this, in 2006, The Convention on the Rights of Persons with Disabilities was adopted by the UN General Assembly (and it entered into force in 2008). It offered favorable legal-political background for the preparation of a specific WIPO instrument to facilitate availability for VIP to accessible format copies. The Contracting Parties are required to ensure the full enjoyment of human rights by such persons taking into account two basic principles: non-discrimination and equal opportunity. In 2007, the General Assembly of WIPO adopted the WIPO Development Agenda containing 45 recommendations; many of which stressed the importance of establishing and maintaining due balance of interests through adequate limitations of and exceptions to IP rights from the viewpoint economic, social and cultural development. This has offered a favorable legal-political background for the preparation of an instrument on exceptions and limitations for VIPs. These forty-five recommendations are made in six clusters such as: Cluster A: Technical Assistance and Capacity Building, Cluster B. Norm-setting, flexibilities, public policy and public domain, Cluster C: Technology Transfer, Information and Communication Technologies (ICT) and Access to Knowledge, Cluster D: Assessment, Evaluation and Impact Studies, Cluster E: Institutional Matters including Mandate and Governance, Cluster F: Other issues. In 2008, the World Blind Union (WBU) and Knowledge Ecology International arranged for an expert group to propose a treaty to address access to copyrighted material for those with reading disabilities. The proposal was presented to WIPO by Brazil, Ecuador, and Paraguay. In 2009, WIPO along with launching a website “Vision IP”, to operate as a platform for expressions of support, exchange of views and dissemination of information to parties interested in the issue of access to copyright works for visually impaired, also hosted a meeting of WIPO and a number of UN specialized agencies in Geneva wherein they agreed on the need for closer inter-agency collaboration in favor of Visually impaired.
Later in June 2010, in the 20th Session of the SCCR considered four separate draft proposals on addressing access to copyright works for visually impaired and other persons with print disabilities. These proposals were prepared by the US, the European Union (EU), the African Group (AG) and a group formed by Brazil, Ecuador, Paraguay, Mexico and the WBU (BEPM/WBU). However, due to a number of conflicts in the 20th session, on the drafts, the session was adjourned without reaching consensus. Nonetheless, in its 21st session in November 2010, the SCCR agreed to work toward “an appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms)” on appropriate exceptions and limitations for PBVIs which follows a “global and inclusive approach” and “bears in mind the Development Agenda recommendations”. Ironically the problem in infeasibility of “adopting appropriate limitations and exceptions on rights when [there is no] clear establishment of rights.” was vehemently argued. It took almost four years to reach a compromise. The Marrakesh Treaty was finally adopted in June 2013, requiring twenty ratifications to become binding. It entered into force on September 30, 2016, three months after Canada became the twentieth nation to accede to it. The treaty currently has twenty-six contracting parties.
SOFT LAW versus HARD LAW
One major argument surrounded the adoption of the treaty as a soft law or a hard law. Leading up to the negotiation of this instrument, multiple UN member states pushed for the instrument to be negotiated as soft law instead of a treaty. An International document, according to its binding nature can either be hard or soft. For example, they can be more or less binding, and more or less specific in their provisions. A Soft law could be in the nature of recommendations and the hard law would be more in sync with binding treaty.
According to Abbott and Snidal the concept has three dimensions: (i) the precision of the rules; (ii) the level of obligation; and (iii) whether there is delegation to a third-party decision-maker. The specific feature of “Hard” agreements is that they bind parties to precise rules, and are often enforced by a third party. It can require parties to implement new laws so as to make the domestic law in compliance with the international agreement. The benefits of such agreements are many including ensure local compliance. A soft law is rather in nature of recommendations and understanding. It gives a greater flexibility for nations and provides less cost in terms of sovereignty. However, a soft law does nothing much, if there is already an international consensus. It is neither binding nor has any judicial implications. In the Marrakesh framework, though much debate has occurred along the line of whether to implement a hard law or a soft law, a consensus was difficult in coming. Certain countries favored a soft-law joint recommendation as the better choice of instrument.
They argued that it is the best path to win broad support, the easiest way to avoid conflicts, and the fastest way to solve deadlocks. However, since copyright is a harmonized international legal regime, the solution to the problem of the “book famine” must be obtained through an international instrument. The international instrument is not a general instrument on copyright limitations and exceptions, but rather addressed the “needs of discrete, vulnerable members of society, such as those who are visually impaired.” Moreover, the instrument addresses a specific, relatively narrow problem. Hence there is less need for experimentation in policy approaches than in the general instrument. Hence a hard law approach would be more favored and was indeed welcomed.
TREATY ANALYSIS
The key achievement of the Marrakesh VIP treaty is ‘a change of culture at WIPO’. The treaty led the way to a change in perception that the global aims underlying WIPO’s development agenda is to be given equal weightage with the private rights of authors and creators of IP. The primary goal of Marrakesh treaty is to create a set of mandatory limitation and exceptions for the benefit of the blind, visually impaired and otherwise print disabled. The right extend to literary and artistic works. The treaty allows exception to make the works available in alternative manner or form. It Permits “Authorized entities” and “Beneficiaries” themselves to make accessible copies without right holder’s permission or license. The Marrakesh goes in resonance with the threes step test as envisaged under the Berne and later incorporated under TRIPS. It provides confines to certain special cases that is to provide access to VIPs. It does not ‘conflict with the normal exploitation of the work’, as the right holder normally does not provide the work in accessible format. It neither “unreasonably prejudice legitimate interests of the author”. The distinguishing feature of the Marrakesh VIP treaty is that it is conceived in line with the human rights principles outlined in the Universal Declaration of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). It is the first copyright treaty to include a human rights perspective. It demonstrates that copyright systems are an important part of the solution to the challenge of improving access to books and other printed works for persons with print disabilities. The treaty further sets forth a minimum standards to be considered during application of the limitations and exceptions so as to facilitate access to accessible formatted works for persons who are blind, visually impaired or otherwise print disabled. The stronghold of the treaty can be understood in its provision to permit cross-border sharing of these accessible format works. This facilitate and aid in countries to avoid unnecessary duplication of efforts in the creation of accessible format works and also facilitate the importation of works in other languages. The treaty understands a beneficiary person as someone who confirms with or is effected by one or more range of the broad set of disability that interfere with the effective reading of printed material as defined under Art 3. A cursory reading of the article can show that the disability confronted by the treaty is wide. It also includes physical disability that prevents from holding and manipulating a book along with visual impairment. This hence ensures that a wider people are benefited from the treaty and access to a larger group is facilitated. For the purpose of this treaty, work includes text, notation and/or related illustrations, whether published or otherwise made publicly available in any media. It hence includes only published works and works otherwise made publicly available. Unpublished works are not covered under the definition. An accessible format copy is further defined as any format that permits a person with a visual impairment or other print disability to have access to the content as feasibly and comfortably as a person without such a disability, including digital formats. An authorized entity is explained as governmental and non-governmental organizations who are authorized by the government and plays an important role in providing persons with print disabilities with access to alternative format materials.
Furthermore, Article 4 of the VIP treaty obligates state parties to provide for a limitation or an exception to copyright in order to allow “beneficiaries” and “authorized entities” to undertake any changes needed to make a copy of a work in an accessible format for persons with a print disability. However, the article ensure that it is only to be provided in non-profit basis. This would be hard as more companies with the technology may not be willing to come to the forefront if there is no profit dangling. The individual entities or even personal use would not be sufficient to address all the needs. As most of the VIPs are located in least developed and developing country, they may not have enough resources to make an accessible copy. However, to address this need, though along with inherent restrictions, also has certain provisions for cross border exchange of accessible format copy.
Article 5 facilitates and obligates contracting parties to provide for the free flow of accessible format copies across borders. It provides that an accessible format copy made in pursuance of the limitation and exceptions as envisaged under the article, maybe distributed or made available by an authorized entity to a beneficiary person or an authorized entity in another Contracting Party. However, the provision also leaves the issue of exhaustion to the nations. Which would be fatal as the countries may choose different types of exhaustion and the chances of cross border issues during the exportation or importation may also come up. There is no check and control mechanism to ensure that the formats are not misused. Since most of the accessible format copies tend to be in digital format the chances of it being spreading to the market and hence effecting the economic rights of the right holder also exist. Further there is no provisions as to how to effectively implement the cross border issues. International exchange of accessible copyright works is critical in light of the significance of technology and resources in production of accessible formats and the number of countries in the world that share the same language. The treaty also facilitates members other than Berne members to receive copies of accessible works from other countries. But in the light of protecting the interests of copyright holders, the Treaty requires the distribution or making available of accessible works to be limited to beneficiaries within the jurisdiction of those countries.
Under Art 6, the contracting parties in the national law is to permit the importation of an accessible format copy for the benefit of beneficiary persons, without the authorization of the right holder. The permission to import is premised on the scope and extent of the national law of a contracting party permitting the making of an accessible format copy of a work.
Moreover, to further access the provisions also facilitates the effective circumvention of the Technology Protection Measures.
Finally, the Treaty obliges the States to take necessary measures to facilitate the cross-border exchange of accessible works. It is to further ensure that such measures include encouraging the voluntary sharing of information between authorized entities to identify each other as well as communicating that information to the general public. To this end, WIPO would “establish an information access point” and share information “about the functioning” of the Treaty.
INDIAN PROVISIONS
India is the first country to ratify the Marrakesh Treaty to facilitate access to published works for persons who are visually impaired, or otherwise print disabled. It was ratified by India on June 24, 2014. However, the Indian provision for visually impaired has been incorporated even before the adoption of the treaty, in 2012 Amendment Act. Hence the provisions has merely made use of the three step test to incorporate the need of the visually impaired.
Under the Indian law, the act provides access to visually impair in two folds. It incorporates it as fair dealing provisions under section 52(zb) of the Indian Copyright Act 1957 and also under the compulsory licensing provision under section 31 B of the Indian Copyright Act 1957. The provisions under section 52(zb) tends to create exception to personal and private use.
The economic significance is negligible. At the same time under compulsory license provisions, it envisages a wider economic significance. It hence envisages a marketability and profit-oriented dealing of the making and distribution of accessible format copy. Moreover, the Indian provision under compulsory license in fact goes beyond the treaty provisions. It mandates a notice to be given to the right holder while using the provision.
CONCLUSION
The Marrakesh VIP treaty hence created history. It understood the complex nature of the access dilemma confronting disabled persons in general and the print-disabled, in particular. It understands the copyright issues, technological intricacies, marketing conditions and the inherent deficiencies in the existing formats, like Braille, large print, or audio and also that the Disabled persons, therefore, require a unique legal arrangement.
The Marrakesh provides for four obligations for the state parties to follow. It includes (1) Adopt limitations and exceptions in their national copyright laws that provide the right to reproduce, distribute, and make available works in accessible formats for beneficiary persons; (2) provide for export of an accessible format copy; (3) permit import of an accessible format copy; and (4) ensure that legal remedies against circumvention of effective technological protection measures (TPMs) does not prevent beneficiary persons from enjoying the limitations and exceptions provided for in the treaty.
