Hundreds of millions of people worldwide encounter severe
distress in trying to access the written word in their education and private
life. Only by employing appropriate technologies, such as for instance the
method first developed by Louis Braille in 1829, written works can to be made accessible to people who suffer from print
disabilities. The creation of accessible versions of copyrighted works and
their distribution to the beneficiary persons, however, normally require the
consent of the respective rightholders.
Whilst international treaties and
conventions in the area of intellectual property generally permit
exceptions and limitations to the rights of the IP holder to be provided, their
nature and scope have been largely left to national legislators to determine. By
1982, only seven member States of the World Intellectual Property Organisation (WIPO)
enacted provisions in that respect, and twenty-five years later exceptions
and limitations for the benefit of print disabled person were present only in 57
member States - out of the then 184-strong overall membership.
According to a study commissioned by the Royal National
Institute of the Blind and covering books published in the United Kingdom in
the period 2004-2010, just some 7 per
cent of them were accessible to blind people and others living with a print
disability,
0.25 per cent of which in traditional
formats like hard copy braille and human voice audio, and 6.80 as accessible
e-books. Unsurprisingly, the situation is considered to
be much worse in developing and least-developed countries, where the majority
of persons with visual impairments or with other print disabilities live.
In 2006, the text of the United Nations Convention on the
Rights of Persons with Disabilities (UNCRPD) was adopted and entered into force
two years later. The text of Convention strongly reaffirms the right to read for people
with disability. The
WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons who
are Blind, Visually Impaired, or otherwise Print Disabled, concluded on June
27, 2013, aims at addressing
the self-evident paucity of available works in accessible format copies (“book famine”).
The newly adopted Treaty sets an elaborate international legal framework in the
form of, first, an obligation for contracting parties to adopt in their respective
national legislations exceptions and limitations that permit the reproduction,
distribution and making available of published works in accessible formats.
Second, the Treaty provides for the cross-border exchange of accessible format
works created based on limitations and exceptions.
The Marrakesh Treaty takes a resolute step towards a
more satisfactory balance between the print disabled persons’ legitimate need
to access copyrighted works and the necessary protection of the rights of the
copyright holders. The Treaty is also a première
on the international stage, being the first multilateral, binding legal
instrument primarily devoted to the establishment of exceptions and limitations
in copyright law. In fact, much of the considerable efforts put into the development
of the international copyright framework so far focused almost exclusively on
defining and protecting the rights needed to promote the important aim of
encouraging and rewarding creativity. Restriction or limitations upon authors justified
by the broader “public interest” were almost exclusively left
to national legislators, albeit within the boundaries set by the relevant
treaties and conventions.
The so-called three-step
test, arguably the most significant among those boundaries, took central
stage throughout the nearly five years of arduous Treaty negotiations. The
final text adopted in Marrakesh contains one direct reference to the test in
the Preamble, two in Agreed statements, Article 5.4 deals with the so called "Berne gap", and Article 11 sets the obligation, for
the Contracting Parties adopting the measures necessary to ensure the
application of the Marrakesh Treaty, to comply
with the three-step test as
formulated in the different international mandatory legal instruments under which
they are bound. While the language of the three-step
test has not changed since its original formulation in the1967 Stockholm Revision of the Berne Convention, its
interpretation remains highly controversial. In this respect, the adopted Treaty is also particularly relevant since it
sheds some light on questions that timely, subsequent revisions of the Berne
Convention should have already helped clarify.
(to be continued, hopefully soon; ACW).
For further material see the label visually impaired and copyright (actually a misnomer, in light of the final Treaty)
All future episodes here.
For further material see the label visually impaired and copyright (actually a misnomer, in light of the final Treaty)
All future episodes here.
