The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled
Why we are campaigning
The treaty sets the legal frame for needed modifications in national copyright regimes to implement legal copyright exemptions for WIPO contracting members to enable authorized entities to share their accessible book collections across national borders with other entities and with blind, low vision and print disabled individuals. This is the first intellectual property treaty benefitting the public interest rather than the interests of rights holders, and closed nearly five years of hard negotiations by the WBU with the active support of the EBU team and in collaboration with other NGOs.
Currently, copyright law is a national jurisdiction which has the effect of preventing blind organizations from sharing books with neighboring countries, thus causing considerable unnecessary duplication of production of books in accessible formats. The treaty will considerably increase the availability of accessible books all over the world and support the mitigation of the predominant book famine. Currently only 5% of all published books in the developed countries and less than 1% in the developing countries are ever produced in accessible formats - such as braille, large print and audio – that visually impaired people and print disabled people need for equal reading enjoyment.
As our campaign leader Bárbara Martín Muñoz wrote in the EBU Focus, “The road to Marrakesh was a long, winding, and tough one that took 4 years to travel and 26 more to pave. At first, asking WIPO (World Intellectual Property Organization) member states to work on a treaty on exceptions and limitations was seen as unnatural by most of them. They found it hard to understand why such a treaty was necessary, and they failed to understand that nothing in the proposed text would harm the international copyright regime. In the final stages of the negotiation, some wanted to see the treaty as an «incentive for publishers», while others humorously saw it as a «treaty to protect rights holders against persons with a print disability»”.
The treaty eventually was adopted on 27 June 2013 and it entered into force on 30th September 2016, after the first 20 ratifications.
The EU signed the treaty on 30 April 2014 and it took them almost as long as WIPO to agree, on 13 September 2017, on two pieces of legislation: the Directive (EU) 2017/1564, to be applied among EU member states, and the Regulation (EU) 2017/1563, to regulate the application of the Treaty between EU member states and non-EU countries. Both amend the existing legislative framework in the Union by providing for a mandatory exception to the harmonized rights which they will affect under the Marrakesh Treaty articles.
On 23 January 2018, the European Parliament gave its green light for the EU to ratify the Treaty.
Shortly before the entry into force of the two EU legal instruments (11 October 2018) the EU ratified the Marrakesh Treaty on 1st October 2018, during an extraordinary session of the WIPO General Assembly. EBU was represented by Bárbara Martín Muñoz at the ratification ceremony. See our press release on that day.
The current situation
The EU ratification of the Marrakesh Treaty completes EU law and makes the Treaty provisions binding on all of its member states.
Since the Marrakesh Treaty Directive was adopted the focus has shifted to EU member states who needed to integrate the new EU legislation into their national copyright laws (External link) by 11 October 2018. At the moment the EU ratified the Treaty, not all EU countries had implemented the Directive. The ratification was not legally conditioned by all EU countries having transposed the directive in their national legislation. To date, one EU country has still not implemented the EU Directive: Greece, over 16 months after deadline. Luxemburg does not need to do so as its national law already contained exemptions for visually impaired persons.
Looking beyond the EU
To date over 100 countries in the world have joined the Treaty, including the following ones in Europe: Russia, Moldova, Switzerland Serbia, Belarus, San Marino Bosnia-Herzegovina and Norway. Regarding the UK, the EU Directive and the Regulation had entered into force before the country’s withdrawal from the EU; the UK Government confirmed its ratification in October 2020 and the Treaty entered into force on 1 January 2021, in smooth transition with the end of the post-Brexit transition period.
Our key concern about national implementation was whether or not each individual EU member states would opt, as the Directive allows them to do, for a “compensation right” for rights holders and publishers. We called on them not to do so. Unfortunately, some EU countries have opted or appear to be opting for such “accessibility tax”, as it is more accurate to describe it. To our knowledge, to-date, among the 24 EU countries that have transposed the directive, only the following ones have opted for a scheme of compensation for rights-holders: Austria and Germany, as well as – only for audio-books – Denmark and Finland.
Another concern is whether national legislation would require authorised entities, in order to benefit from the Treaty provisions, to be on an approved list – which would be contrary to the Agreed Statement on Article 9 of the Treaty. We have less visibility on which countries are imposing such requirement. Bulgaria, Cyprus, France and Germany and Italy surely are.
Outside the EU we are mobilising our members to push their countries to ratify the Treaty as soon as possible, and will increase our efforts in that direction. A draft bill is ready in Montenegro. We are also pushing the non-EU European Economic Area countries (Iceland and Liechtenstein) to incorporate the EU Directive and Regulation into their national laws without further delay; this is expected to take place by the end of 2021.
In doing so, we will have to make sure that all stakeholders understand the provisions of the Treaty and work closely with their national government on an enlightened and full implementation of the Treaty, by raising awareness and training government officials on the need for, and the importance of, the Treaty; and about the many safeguards it contains to ensure that rightsholders’ interests are also protected.
In general, we will want to monitor the effective respect of the Treaty in the countries (EU or non-) that are effectively bound by it.