February 1, 2024

Marrakesh Treaty to facilitate access to published works for the Visually Disabled

This article has been written by Mr. Abhishek Singh, a first year student of Banaras Hindu  University, Varanasi.

Abstract

Any development which is partial in its nature can’t be considered as truly developmental in its essence. This perception of development can be viewed in the light of struggles faced by Visually Impaired Persons on account of lesser number of readable materials. While for a capable person, this may appear a minor inconvenience but for a visually impaired person, it can be a life-changing matter as lack of readable resources can determine the living conditions of these people. Understanding the plight of a common visually impaired person, Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled was framed, enacted and adopted by the international community. This article aims to introduce as well as analyse the treaty along with enumerates Indian practices for ensuring inclusivity and welfare of visually impaired persons.

Keywords– Marrakesh Treaty, Visually Impaired, Book Famine

Introduction

Currently, In India, there are an estimated 4.95 million blind persons and 70 million vision impaired persons out of which 0.24 million are blind children as of 2022. A mere glance at the statistics can depict the dark future that awaits if inclusivity is not kept as a goal in education. Seeing this, a global effort was initiated to achieve a uniform legislative instrument on the subject which ultimately culminated in the development of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, which was adopted on 27 June, 2013. The treaty aims to address the challenges faced by visually challenged persons and is a beacon of promoting inclusivity.

History and Background

The treaty is a culmination of a long historical research and debates which started in 1980s, when World Intellectual Property Organization along with UNESCO published some reports highlighting a lack of mechanism to ensure access of copyright works to visually impaired person which received less international attention, much less than what it deserved. However, it was an initial step only as in 1985, another report by World Intellectual Property Organization was published which identified two issues faced by persons with disabilities, which were as- 

  • Statutory limitations in reproducing the works into accessible form.
  • Absence of mechanism in distribution of reproducible works.

These arguments gave birth to a demand for an international treaty to solve the issue. The issue gained traction in 2006 when United Nations Conventions on Rights of Persons with Disabilities was adopted and it reaffirmed that the persons with all types of disabilities have rights to enjoy all human rights and fundamental freedoms, namely the freedom to receive information and ideas on an equal basis with others and the through all forms of communication. Subsequent to this, World Intellectual Property Organization published the Sullivan Report on ‘Copyright Limitations and Exceptions for the Visually Impaired’ which acted as a supporting ground for the future treaty. In 2004, WIPO launched its Development Agenda in the form of ‘an ambitious document that called WIPO to revisit its mandate and shift from its traditional emphasis on promotion and expansion of intellectual property rights towards a more development-orientated approach. After several meetings held in 2005, WIPO agreed to adopt Brazil and Argentina’s Proposal to establish a Development Agenda which was formally established by 2007. In 2009, World Blind Union persuaded a group of Latin American countries to table a proposal at the 18th Session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) for a specific treaty entitled the ‘Proposal by Brazil, Ecuador and Paraguay Relating to Limitations and Exceptions: Treaty Proposed by the WBU’. The fundamental reason behind this proposal was the inclusion of right to read as a fundamental right of Humans. While the proposal gained support in international fora, they suffered from some inner inconsistencies which led the US, African Union and European Union to formulate their own alternative policy stance on the topic. After years of conflict and debate, a consensus was reached by the ardent effort of the NGOs, Marrakesh Treaty was adopted in June 2013.

Key Provisions

The treaty itself is a noble peace of legislative brilliance as the only and the major objective behind all this was to ensure inclusivity and welfare instead of profit making. Some notable provisions which deserves special attention as they contain the essence of the treaty are dealt under-

  • Article 2 is a definition clause where subject matter notably works, accessible format copy and authorized entity for the purpose of Treaty is defined. Works is defined in broader terms as it includes literary and artistic works with reference to Berne Convention for the Protection of Literary and Artistic Works, and includes media made available to public in whatever manner, Accessible Format Copy is defined as copy of a work in an alternative manner or form which gives a beneficiary person access to the work, including to permit the person to have access as feasibly and comfortably as a person without visual impairment or other print disability and defines Authorized entity as entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis.
  • Article 3 of the Treaty defines the term ‘Beneficiary’. The definition is wide in scope as it not only covers blind persons or persons having visual impairment or a perceptual or reading disability but also includes persons who are not able to focus or move the eyes for the purpose of reading on account of any physical anomalies.
  • Article 4 is an article which hides a spirit of welfare within it as it gives contracting party a right or obligation to include clauses for limitations or exceptions in their domestic laws of copyright laws to permit right to reproduction, distribution and making the public works accessible for beneficiary persons. The article also gives scope for making and supplying accessible format copies of the copyrighted material without the permission of the right holders to the beneficiaries subject to the condition that the authorities in question should have a lawful access of the same and the object of the act should be welfare and therefore, it should be done on a non-profit basis.
  • Article 5 of the Treaty deals with Cross-Border Exchange of accessible Format Copies. This article gives scope for making accessible format copies of the works without the knowledge of the right-holder for facilitating distribution of works in other contracting parties.
  • Article 6 provides for Importation of Accessible Format Copy. It creates an obligation on the parties to allow for importation of accessible format copy when their domestic laws allows them the creation of those accessible works so as to prevent discriminations.
  • Article 8 ensures that beneficiaries are treated as an individual rather than a mere statistic as it ensures that their privacy is ensured by creating an obligation on the contracting party to guarantee the same.
  • Article 9 deals with cooperation for facilitating cross-broader exchange. This article acts as an evidence of the values on which the Treaty is based as the article reinstates its belief on international cooperation for its success. 
  • Article 10 gives freedom to the contracting parties to frame their own rules in achieving the objectives of enumerated by the Marrakesh Treaty.

Analysis

A major change brought by the treaty is a change in perception as it changed the subject of discussion from protection of individual rights in World Intellectual Property Organization to the topic of inclusion and welfare. The vision envisaged by the treaty is in consonance with the three step test as envisaged under the Berne and later incorporated under TRIPS and strikes a delicate balance between the rights of private citizens and rights of visually impaired persons. 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). The Treaty has been a work of novel minds as each article strikes the right spirit of welfare and inclusion depicted by a wide definition clause of Beneficiaries, provisions for cross-border exchange so as to remove any chance for unproductive labour leading to duplication of work. However, despite these redeeming features, some natural issues persists. Notable of these issues are-

  • Low Awareness– Awareness about this treaty is comparatively low because of which nation states can continue to dodge their obligations with no aware citizens to make them accountable.
  • Effective Implementation- Low awareness is directly linked with effective implementation as accountability can only be ensured by an aware citizenry.
  • Evolving Technologies– Development of new forms of publications along with a growing demand of digitally produced books is a subject matter which was not dealt under the concerned treaty which creates a lacuna on the subject matter.

However, the impactful change brought by the Treaty is unparalleled as on a psychological scale it gave the visually impaired beneficiaries, a confidence that they too are more than capable of competing on a level playing field. Thereby, some of the notable changes brought by it are as follows-

  • Reduction of Book Famine: By removing barriers to the production and distribution of accessible format copies, the treaty has contributed significantly to reducing the book famine experienced by individuals with print disabilities. It empowers them to explore a wide range of literature, fostering education, personal development, and cultural engagement.
  • Empowerment Through Education-Access to educational materials is crucial for the academic and professional development of individuals with print disabilities. The treaty ensures that textbooks, research materials, and other educational resources are readily available in accessible formats, empowering this demographic to pursue higher education and contribute to society.  
  • Cultural Inclusivity-Literature and cultural works play a vital role in shaping societies. The Marrakesh Treaty promotes cultural inclusivity by enabling individuals with print disabilities to access literary and artistic creations from around the world. This contributes to a more diverse and enriched cultural landscape. 

Thus, It is without any doubt that the Marrakesh Treaty is a useful and novel treaty that is getting a much deserved international support but it too needs to adapt so as to provide viable solutions to new emerging issues in light of a rapid technological advancements.

Indian Provisions

India was the first country to ratify the Marrakesh Treaty to facilitate access to published works for persons who are visually impaired, or otherwise print disabled on 24 June, 2014. However, it was not something new as India by an amendment in 2012 already included provisions for giving scope for making available copyrighted materials to visually impaired persons. 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

In conclusion, the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled stands as a testament to the power of international collaboration in breaking down barriers and fostering inclusivity. A mere glance over the treaty gives a testimony of the profound impact of the treaty on the lives of visually impaired individuals as this demographic has been empowered to explore the vast landscape of literature, education, and culture. While the treaty’s significance extends beyond legal frameworks, permeating into the realms of education, personal development, and cultural engagement, the Marrakesh Treaty has played a pivotal role in reducing the disparities faced by visually impaired individuals. However, it is our collective responsibility to ensure the continued success and expansion of initiatives like the Marrakesh Treaty, creating a more inclusive world where the barriers faced by visually impaired individuals are continually dismantled, and the right to access knowledge is truly universal.  

 

References-

 

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