Marrakesh has some special significance for multilateral treaties. It was in Marrakesh that one of the most significant multilateral agreements culminating in the establishment of World Trade Organisation got concluded in 1984. About 60 agreements were signed concluding Uruguay Round of Multilateral Trade negotiations at the Marrakesh ministerial meeting on April 15,1994, most significant is the Agreement Establishing the World Trade Organization, which is now commonly known as the "Marrakesh Agreement”. In a way, it is the Marrakesh Agreement establishing WTO was the wind beneath the wings of globalization and liberalization that swept the world in the last decade of the 20th century.
Now Marrakesh is again in the news for a Multilateral Treaty of another kind, a copyright treaty providing for access to the visually impaired in braille and other print disabled friendly formats. International negotiators of a Diplomatic Conference held from June 17 to 28, 2013 under the auspices of the World Intellectual Property Organization (WIPO) adopted a landmark new treaty that boosts access to books for the benefit of hundreds of millions of people who are blind, visually impaired and print-disabled. It facilitates access to published works in Braille, large print and audio formats.
The Treaty is called the Marrakesh Treaty to Facilitate Access toPublished Works for Persons who are Blind, Visually Impaired, or otherwisePrint Disabled. This Treaty adopted by the diplomatic conference will need be ratified and adopted by the nation states and to be made part of their law. The Treaty requires the parties to adopt provisions in their national laws that permit the reproduction, distribution and making available of published works in accessible formats through limitations and exceptions to the rights of copyright holders.
Marrakesh looking South!
The Treaty essentially addresses a concern widely known as “book famine” for the visually impaired. According to the World Health Organization, there are more than 314 million blind and visually impaired persons in the world, 90 per cent of whom live in developing countries and least developed countries of the south. According to the World Blind Union, of the million or so books published each year in the world, less than 5 per cent are made available in formats accessible to visually impaired persons. But for the majority of the visually impaired in developing countries this figure is almost around 1%.
The Treaty provides for the exchange of disabled accessible format works across borders by organizations that serve the people who are blind, visually impaired, and print disabled. It will harmonize limitations and exceptions so that these organizations can operate across borders. This sharing of works in accessible formats should increase the overall number of works available.
Unlike the earlier Marrakesh Agreement which favored mostly the North, the current Treaty favors mostly the blind persons, mostly in the South. In the words of the WIPO Director General Francis Gurry, it tries to access the “book famine” for the print disabled.
Morocco’s Minister of Communications and Government Spokesperson Mustapha Khalfi, who banged the gavel to signify the treaty’s adoption. “Thanks to the blessing that is here in Marrakesh, which we call the city of the Seven Saints, and thanks to you all we were able to achieve what we can call a "Miracle in Marrakesh."
What is the Treaty trying to address
Copyrights law grants the exclusive right over reproduction in any material medium to the rightholder. This includes forms such as braille and other visually impaired. On the other hand copyright law contains fair use provisions which provides access to works for certain non profit uses. Examples are making copies for personal use of research, education etc. These exceptions have been crafted keeping the need of the majority of the population. This does not take care of the need of the visually challenged or the print disabled. So if the print disabled have to get access to copyright works, they have to be given special provisions under fair use provisions of the copyright law. Berne Convention and TRIPS Agreement provides for limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. These three conditions are squarely applicable in the case of print disabled as these are (i) special cases (ii) do not conflict with normal exploitation of the work, and (iii) do not affect the normal exploitation of the work or his legitimate (commercial) interests. International copyright law has always recognized the need to balance the rights of authors of creative works and the public interest. Some uses of copyrighted material are exempted from the requirement to seek authorization from the rightholder or to pay royalties.
And yet in more 125 years of Berne Convention (1886), very few countries have provided specific exception to the print disabled. A WIPO survey in 2006 found that fewer than 60 countries have limitations and exceptions clauses in their copyright laws that make special provision for visually impaired persons. Further, as like other IP laws, copyright laws are municipal laws and are ‘territorial’, these exemptions usually do not cover the import or export of works converted into accessible formats, even between countries with similar rules. Organizations in each country will have to negotiate licenses with the rightholders to exchange special formats across borders, or produce their own materials, a costly undertaking that severely limits access by visually impaired persons to printed works of all kinds. The solution is adoption of an international Treaty which will then be incorporated into the copyright laws of different countries.
Recognition of Human Rights in IP Law
The Treaty recalls the international convention on human rights in the opening statement of the Preamble to the Treaty, reproduced below
The Contracting Parties,
Recalling the principles of non-discrimination, equal opportunity, accessibility and 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,
To me this came as a surprise. So far Human Rights have been given lip service in IP treaties and conventions. The entire discussion on IP protection has been, for sometime being carried out, at a single track approach of protecting the author or the inventor. This is despite the Article 27 of the Human Rights convention which, in plain reading, at least to me, talked about a desirable balance between rights of the authors and access to the fruits of science.
Article 27.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Most commentators argued this Article as protecting human rights of the creator, the author or the inventor, on the material interests. Feeble voices were about access and the ability to share scientific advances were ignored or out rightly brushed aside as not reflective of realities. The arguments went thus:- the enjoyment of arts and share in scientific advance is possible only if these are brought to the market. These will be brought to the market only of the material interest of the author is protected. Protection of investment is required to let everyone enjoy the right to access and share the scientific advancement and its benefits. In this argument, intellectual property protection is protection of human right of authors. The rest of the rights in Article 27 flow from this protection. Proponents of this argument will stretch this argument further and make you believe that investment protection is human right protection. Protecting the intellectual property of the pharmaceutical companies enables your enjoyment of the right to health as otherwise you will not get these medicines in the market. The argument will be further stretched by its proponents to state that intellectual property protection is actually investor protection. For them, fair use and other provisions which brings in a balance in copyright law is an accompaniment which need be strictly controlled to ensure return on investment for works.
What makes this treaty special is that it deals with Article 27 (1) and expressly states about the Human Rights of access to works. This is a fundamental shift in the approach to IP so far. All diplomatic conferences so far have been on rights of authors, protecting it and expanding it. There has never been a diplomatic conference on fair use provisions or on the first limb of Article 27 (1). This possibly has been the first one which was exclusively convened to ensure access to the works.
Progressing with Technology
Technology enables access of works by the blind more than ever before. In its intervention, the Holy See (Vatican) made the following statement:
“Twenty or thirty years ago little could be done about the “book famine”. Printing braille books was time-consuming and resource-intensive. Technology has brought about important changes. Today visually impaired people can read books on computers using text-to-speech technology magnification, by means of so-called braille displays, or by listening to normal audio books. Now every book on the planet can quite easily be made accessible to blind users; instead of the 1% or 5% access of the past, today’s technical capacity allows close to 100%. Our goal, then, is not just a treaty, but rather a treaty that will resolve obstacles to access”.
Article 7
Obligations Concerning Technological Measures
Contracting Parties shall take appropriate measures, as necessary, to ensure that when they provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures, this legal protection does not prevent beneficiary persons from enjoying the limitations and exceptions provided for in this Treaty.
There is a footnote to this clause which gives an agreed statement: Agreed statement concerning Article 7: It is understood that authorized entities, in various circumstances, choose to apply technological measures in the making, distribution and making available of accessible format copies and nothing herein disturbs such practices when in accordance with national law.
VIP Provisions in Indian Copyright Law
The Indian copyright law after its 2012 amendment has provisions relating to access of works for the blind. The Copyright Act 1957 has a two pronged approach to protect the interest of the blind. A special fair use provision has been added to section 52 (za) to provide for making copies for the visually impaired persons (VIP) and organisations working for their benefit. The second prong is the provisions for compulsory licensing for works for VIPs. Rather cutely, these amendments have been called VIP amendments.
Government of India was represented in the conference and supported the amendments. Their concluding statements can be accessed here. Other than its official delegation, number of Indian experts who work with non governmental organisations was part of the negotiations. K M Gopakumar of Third World Network and Pranesh Prakash of Centre for Internet and Society were present among others. Pranesh made a touching concluding statement. To quote a sentence:
“When copyright doesn't serve public welfare, states must intervene, and the law must change to promote human rights, the freedom of expression and to receive and impart information, and to protect authors and consumers. Importantly, markets alone cannot be relied upon to achieve a just allocation of informational resources, as we have seen clearly from the book famine that the blind are experiencing”.
In their opening Remarks the World Blind Union stated:
Ladies and gentlemen; these next few days you have a chance to create history and really do some good in the world for an often marginalised part of humanity. Please seize it with both hands and help us write a new chapter in the story of blind people’s inclusion in society
This seems to be just what the diplomatic conference did!
LETS CALL IT A 'SEE' CHANGE!
ReplyDelete