Historic treaty to relieve copyright burden on blind persons who hope to read

 By Min Wu

By Roland DG Mid Europe Italia | Flickr

On October 2, the United States signed a historic treaty intended to alleviate the book famine for more than 300 million blind or visually impaired persons in the world. The goal of the treaty is to create exemptions in the copyright laws of signatory countries, so that copyright holders such as book publishers cannot stand in the way of the creation and distribution of works in accessible formats.

The treaty, formally known as the World Intellectual Property Organization Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (WIPO Marrakesh Treaty), was adopted in Marrakesh, Morocco by more than 150 countries on June 27, 2013. However, the treaty will not be effective until the legislatures of at least 20 countries ratify the treaty by incorporating it into their domestic laws.

Today, less than 5 percent of the books published globally each year are made available in accessible formats such as Braille, large print text, and audio books. Publishers charge royalties for the permission to convert books into such accessible formats, which adds to the already high cost of producing books and contributes to the book famine. A treaty that relieves the copyright burden on blind persons has been the goal since the initial treaty negotiations started in 1981.

According to WIPO Director General Francis Gurry, the WIPO Marrakesh Treaty is a “balanced treaty” that will “lead to real benefits for the visually impaired.” “A Miracle in Marrakesh,” said Mustapha Khalfi, the Morocco official who announced the treaty’s adoption.

It is worth noting that the treaty does not work as a total surrender of publishers’ rights. Instead, it flexibly requires signatory countries to create “a limitation or exception to the right of reproduction, the right of distribution, and the right of making available to the public … to facilitate the availability of works in accessible format copies.” One way of complying with the treaty is to allow authorized organizations (typically non-profit organizations that serve the blind population) to make, distribute, import and export works in accessible formats for the purpose of benefitting the people in need, without the permission of copyright holders.

Significantly, the import/export exception are expected to facilitate the cross-border exchange of accessible format works. Over 50 countries, including the US, already have certain copyright exceptions for the visually impaired persons in their domestic laws. However, the right to import and export accessible format works is not always guaranteed. By creating the import/export exception, the treaty will avoid the effort of making such works in one country when they are already available in another country.

The treaty is broad in that it covers almost any disability that interferes with reading activities. People that are blind, visually impaired, reading disabled, or unable to hold a book or move the eyes are all included. “Accessible format” is also broadly defined as including formats that permit a visually impaired person to read “as feasibly and comfortably” as a normal person. However, significant limitations were written into the treaty, largely due to the lobbying efforts of copyright holder groups.

The Motion Picture Association of America (MPAA) took a major part in lobbying against broad copyright exceptions for the visually impaired persons. A Freedom of Information Act request revealed extensive communication between MPAA and the US Patent and Trademark Office, which represented the US in the negotiation of the treaty.

Before the negotiation in Marrakesh, MPAA was already successful in excluding audio visual works such as films from the scope of the treaty. Somewhat surprisingly, it continued its active lobbying during the negotiation in Marrakesh. Further limitations were eventually included in the treaty. For example, it allows signatory countries to adopt a “commercial availability” provision, denying the exemption status of the making and distribution of accessible format copies where such copies are already commercially available.

When asked about the reason behind the film industry’s aggressive position, a lobbyist responded that it is “all about precedent.” MPAA was afraid that the treaty might send a dangerous signal that copyright protections can be easily bypassed. Another industry organization, Intellectual Property Owners Association, shared similar concerns, but focused on another area of intellectual property protection: patents.

Although the US signed the WIPO Marrakesh Treaty on October 2, it is still a long way from ratifying the treaty. Treaty ratification in the US requires a two-thirds vote of the Senate, in addition to the approval of the President. The good news is that the US can ratify the treaty without amending its domestic law. The WIPO Marrakesh Treaty was in fact partly modeled upon US copyright law, including the so-called Chafee Amendment.