30 years in the making and bearing witness to highly-charged disagreements throughout its negotiation, the signing of the treaty was quickly dubbed “The Miracle in Marrakesh” and was even greeted by an impromptu Stevie Wonder concert – the singer fulfilling an earlier promise to perform, should the treaty be finalised.
Such importance is attached to the treaty due to the problems that it aims to solve, namely the dearth of copyrighted literature available in formats accessible to visually impaired persons (VIPs). This situation is often referred to by blind NGOs, charities, and those sympathetic to their cause as a “book famine”. The World Blind Union estimates that of the million or so books published each year in the world, less than 5% are made available in VIP-accessible formats. This figure drops to the astounding level of 1% availability in the developing world. To put this into context, the World Health Organisation estimates that there are 285 million VIPs worldwide, of which 90% live in the developing world.
The most promising solution to the problem lies in the work of various NGOs and charities worldwide in doing what publishers do not see the financial incentive to do themselves: convert copyrighted works into accessible formats such as Braille, audiobooks, or large print and then distribute them to VIPs. In practice, this conversion infringes the copyright of the author, and in the absence of an exception requires authorisation that is rarely granted. The treaty removes this obstacle through the international harmonisation of a copyright exception to be adopted by all 186 members of WIPO.
This harmonisation will also remove another impediment of attempts to end the book shortage, this being the inability to transfer accessible works across international borders. Exceptions exist in 60 WIPO member countries already – including the EU Member States and the US – but due to the lack of harmonisation at the international level, works created under exception in these countries cannot be distributed from one country to organisations or individuals in another. This has resulted in an inefficient system in which works must be re-converted in each individual country with an exception. For instance, in Spain there are 100,000 accessible books available in Spanish and in Argentina 50,000, yet libraries in Colombia, Nicaragua, Mexico, Uruguay, and Chile have fewer than 9,000 accessible books between them. Clearly the easiest solution to the lack of accessible works in Spanish in these countries would be the distribution of those already-converted works from Spain and Argentina. This will now be possible through the treaty.
Copyright (Everything’s Alright)
With the build-up of moral and legal justifications behind the treaty, you could be forgiven for pondering why it took 30 years from the first 1982 WIPO-UNESCO working group on the topic to convene a Diplomatic Conference to finalise a treaty, and why opposition from rights holders has been so vociferous. The central problem for rights holders is and has always been the potential for the treaty to set precedents at the international level. In the words of the US-based Intellectual Property Owners Association (IPO), concerns laid with ‘the potentially negative, precedential effect that a one-sided, exceptions-focused VIP treaty may have on parallel developments at WIPO and in other international negotiations.’ In itself, the fact that the treaty focuses on exceptions and not enforcement or the greater strengthening of copyright is rare.
Rights-holders have insisted that despite such concerns, they support the existence of the treaty, yet it remains the case that the first form that opposition took was the insistence that soft law “instruments” and voluntary measures were preferable to a binding international copyright treaty. Chief among the organisations arguing for this – despite the print focus of the treaty – was the Motion Picture Association of America (MPAA). The European Parliament played a decisive role in ending these arguments with its 2012 Resolution calling upon the Council and Commission to support a binding instrument.
The second form that opposition took was attempts to limit the scope of the exception. Arguing that the treaty impedes upon legitimate financial interests for publishers, rights-holders argued for the inclusion of a “commercial availability clause”. Such a clause would have required organisations to check for the existence of commercially available accessible works prior to converting copyrighted material into accessible formats. Furthermore, rights-holders sought to prevent the cross-border distribution of works from organisations based in one country to individuals based in another. Negotiators representing the blind argued that both instances represented unnecessary bureaucratic burdens to be placed upon organisations without the resources to cope.
In the end, the European Parliament proved once more to be the institutional vanguard of public interest arguments. The May Strasbourg session saw an unusually united plenary chamber with MEPs from every parliamentary group calling for the Commission and Council to negotiate “a complete and unhindered exception.”
Judging by the final text of the treaty, it appears the call was heeded. The commercial availability clause is watered down to a version whereby it is left to WIPO Members to decide whether to require organisations to check for the existence of commercially-accessible works, while organisations are free to distribute to individuals in other countries. Rumours from Marrakesh suggest that it was EU negotiators who changed tack and pushed for such positions. The joy with which organisations for the blind greeted the treaty was not just because it had finally been signed, but also because it appears to be so heavily in their favour.
Signed, Sealed, Delivered
Whether the treaty represents the precedent that copyright holders fear is something that only time and the content of future international treaties will prove. What is clearer is that the treaty represents a further example of the role of public interest in modern international copyright law. That an exceptions-focussed treaty has been signed for which rights-holders are not the beneficiary is quite unique. Meanwhile, the institutional role of the European Parliament in negotiations has echoes of its key role as a mouthpiece of public interest arguments during the political storm surrounding the Anti-Counterfeiting Trade Agreement in 2012.
Of course, none of this should detract from the main result of the WIPO Treaty for the Blind: an important and seemingly effective international treaty has been signed after 30 years of discussion that should help solve an unacceptable situation for the world’s visually impaired people. Precedent or not, this is exceptional.
James Sibley is an intern in a Brussels-based consultancy and a former trainee of the European Parliament. All views expressed are done so in a personal capacity.
On copyright and rights of persons with disabilities: WIPO treaty for the blind
Miracle In Marrakesh: “Historic” Treaty For Visually Impaired Agreed
New Draft Text Shows Progress On WIPO Treaty On Books For The Print-Disabled
Intellectual Property Owners Association Against Helping The Blind Because It Would 'Set A Dangerous Precedent'
Poisoning the Treaty for the Blind
Chris Dodd: MPAA Supports Meaningful Treaty for Visually Impaired