India: Historic Marrakesh Treaty: For Visually Impaired/Print Disabled Persons

Last Updated: 12 September 2013
Article by Sugandha Nayak

In keeping with the fundamental objectives of non discrimination, equal opportunity, access, complete individual development, effective and inclusive participation in society, the Treaty of Marrakesh truly balanced human rights and intellectual property rights. Marrakesh, an international treaty that ensures visually impaired people to have easier access to books, unanimously adopted by member state of the UN's World Intellectual Property Organization (WIPO). The treaty was approved by representatives from WIPO's 186 member states including India at "The Marrakesh Treaty to Facilitate Access to Publish Works for Persons who are Blind, Visually Impaired or otherwise Print Disabled" on June 27, 2013. After this treaty, books would be available in all sorts of formats such as Braille, for the print disabled/visually impaired, in order to enable them to read, learn and participate in the society.

Treaty's Agenda and the Final Verdict

The treaty recognized the obligation of the right holder to make works accessible to persons with visual impairment and to the print disabled, recognized that though countries have different limitations and exceptions to their copyright law, but a uniform international framework to be followed and to ensure cross-border exchange of books in accessible format. The main agenda was to promote sharing of books in any accessible format for blind or visually impaired, and to alleviate the "book famine" experienced by many of the WHO estimated 300 million people from such disability in the world. According to World Health Organization, India has more than 63 million visually impaired people, of whom about 8 million are blind.

Considering the access of knowledge, keeping the blind persons in mind, the treaty removed barriers to access, recognized the right to read, established equal opportunities and rights for blind, visually impaired and otherwise print disabled persons who are marginalized due to lack of access to published works. Adoption of this treaty has made equal and appropriate balance between Copyright Law, its exceptions and limitations. The treaty also focused to adopt national law provisions that permit the reproduction, distribution and making available published works in accessible formats without having to seek permission from organizations that serve people who are blind, visually impaired and print disabled. This will in turn increase the availability of accessible works as different countries will be able to each produce accessible versions of materials which can then be shared with each other instead of duplicating efforts by adopting the same work.

Furthermore, because copyright law is "territorial" these exemptions usually do not cover the import or export of work covered into accessible formats, even between countries with similar rules. Organization in each country must negotiate license with the right holder to exchange special format across border, or produce their own material, a costly undertaking that severely limits access by visually impaired persons to print works of all kinds.1

Substantive provision2

Article 2 - of the draft lays down certain important definitions. From the definition of the work, it becomes clear that this treaty is applicable to literary and artistic work. 'Accessible format copy' is defined to mean a copy of a work in an alternative manner or form in order to enable people with visual impairments to have access to these works 'as feasibly and comfortably as a person without visual impairments or print disabilities.' The breadth of this definition is welcoming. However, the US and EU policy on digital locks as well as translation rights may pose a hurdle for the realization of access and availability of such formats. Therefore, though the law requires books to be made available easily, technology and market choices by the US and EU may hinder 'feasible and comfortable' access to such formats.

The footnote to Article 7 allows authorized entities to make use of technological measures and says that nothing should disturb such practices if they are in accordance with national laws.

Article 3 - Another major development has been the inclusion of the 'print disabled' as a beneficiary (along with the blind and visually impaired). This is in keeping with the objectives of non-discrimination and equal opportunity. A print disable person is someone who cannot access print due to certain visual, physical or cognitive disabilities. Example a person who has no hands cannot turn page of a printed book and is print disabled (even though his visions is fine).

Article 4.2 - The treaty allows the owner of the copyright, the beneficiary (or someone acting on his behalf ) or an 'authorized entity' to make an accessible format copy of a work without the authorization of the copyright holder. Moreover, the treaty mandates that such copies be shared only with beneficiaries and be made from lawfully obtained copies. The Indian Copyright law also allows the disabled person and non-profit third parties working for the disabled to convert works into accessible formats without authorization from the right holder.

Article 5 - Cross border exchange of copyrighted works in accessible formats is one of the primary aims of the treaty. Technologically advanced developed nations have the capability to convert works into various formats, whereas the developing nations may not have the same capabilities. The treaty enables easy access to converted works across borders. This is giant step for ensuring access. However, since the treaty text uses the word 'may' and gives an impression that this provision is non-mandatory, the US and EU may take advantage of such language.

Article 9 and 14 - The treaty delegates administrative functions to the International Bureau of WIPO. The International Bureau will also help in facilitating cross border exchange of accessible formats by encouraging voluntary sharing of information so that authorized entities can identify each other. An Assembly to maintain and develop the treaty has also been created. Each Contracting State is represented by one delegate in the Assembly who has one vote.

India's Prospective & the Copyright Amendment Act, 2012 WTO/TRIPS agreement in 1994 has given India an important multilateral treaty for blind people. It has set up an unprecedented example in solving the problem in the international norm setting and it reinforced our confidence in the WIPO's significant role in managing and implementing the international copyright system. It has been found that only 1% of all the books are available in accessible formats and it is stated that 47 million of the world's visually impaired persons stay in India. In order to deal with this deficit an amendment in the Indian Copyright Act was introduced vide Copyright Amendment Act, 2012 and amendment in Section 52(1)(zb) which permits the conversion of a work into any accessible format exclusively for the benefit of persons with disabilities. This amendment was introduced much before the Marrakesh Treaty and in all probability would have been upheld as a shining example at the Marrakesh Conference, Morocco.

Conclusion

Prior to the treaty, it was often unlawful to allow so-called authorized entities (libraries or NGO's) in one country to send accessible format books directly to authorized entities or blind individuals in another country. This resulted in large libraries of accessible books being trapped behind national borders. As a result, the same books had to be made accessible from scratch in each new country where a blind person needed it. Now cross-border shipment will be legal with little administrative burden. The treaty reiterates the requirement that the cross border sharing of work created based on limitation and exceptions must be limited to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interest of the right-holder. The treaty also allows for the unlocking of digital locks on e-books for the benefit of blind people. In other words, a kindle book or iBook with digital rights management could now be unlocked and printed in Braille without consulting the rights holder. At present, 51 countries have signed the treaty making it the largest number of the countries to ever sign a WIPO-administration treaty upon adoption.

Footnotes

1 http://www.wipo.int/pressroom/en/articles/2013/article_0017.html , last retrieved on 02.08.2013.

2 http://spicyipindia.blogspot.in/search?updated-max=2013-07-07T16:16:00%2B05:30&max-results=20&start=19&by-date=false , last retrieved on 04.08.2013.

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