By Adriana Benedict
The recent signing of the Marrakesh Treaty to Improve Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled is a watershed event in the global movement for access to knowledge and culture according to international human rights standards. The Marrakesh Treaty, as the first users’ rights treaty, is a welcome retreat from the so-called “global IP ratchet.” Over the past quarter century, international copyright standards have grown increasingly broad, stringent and inflexible, shrinking individual countries’ abilities to experiment with standards tailored to their unique political economies. This upward ratchet has been driven by multilateral agreements like the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (WPPT), as well as various free trade and bilateral investment agreements that contain “TRIPS-plus” provisions. The Marrakesh Treaty provides the first multilaterally agreed upon exception to these agreements’ prohibitions against unauthorized, royalty-free reproduction, modification, distribution and importation of creative works. Especially for print-disabled individuals in developing countries where Braille and other accessible formats are largely out of reach, the treaty is a decisive victory for civil society stakeholders despite publishing and entertainment industry representatives who have lobbied long and hard against any agreement that would scale back the rigidity of copyright laws.
States Parties to the treaty agree to implement exceptions and limitations to copyright laws that will facilitate the creation and cross-border sharing of accessible works for persons whose visual, learning or physical impairments prevent them from enjoying equal access to information and cultural works. Importantly, as noted in the preamble, the new treaty aims to facilitate greater opportunities to benefit from and contribute to research.
Specifically, the Marrakesh Treaty calls on states parties to establish exceptions and limitations to copyright holders’ exclusive rights in order to allow for the unauthorized creation of accessible formats. (The treaty leaves open the possibility for individual states to require reasonable royalties to be paid to the copyright holders.) The treaty additionally provides for the free flow of accessible copies across borders, providing an explicit exception to copyright holders’ right to control importation of unauthorized works. Importantly, the treaty also calls for states parties to undertake efforts to ensure that technological protection measures (TPMs) do not stand in the way of the flexibilities granted to the treaty’s beneficiaries. In the U.S., this may re-open debates about the reasonableness of the Digital Millennium Copyright Act’s (DMCA) requirement that parties adversely affected by TPMs regularly renew their requests for exemptions from the DMCA’s prohibitions against the circumvention of TPMs. Indeed, the ratification debates that will ensue will be the next battleground for industry groups who remain opposed to the treaty’s precedent as a users’ rights treaty.
The success of the Marrakesh Treaty will ultimately depend on the ratification status of individual states. Nevertheless, the broad-based agreement achieved by the treaty negotiators indicates that the multilateral political arena may be ripe for more discussions about flexibilities and limitations necessary for promoting open knowledge economies in developed and developing countries alike. In this way, the Marrakesh Treaty, which was negotiated through WIPO’s relatively transparent process (as compared to the USTR’s standards for trade and bilateral investment agreements such as the TPP) reinforces that openness is a critical factor in ensuring that multilateral agreements can indeed represent the public interest while achieving broad-based consensus.