Prof. Justin Hughes,* Cardozo School of Law, Yeshiva University
August 5, 2013

On June 28, 2013, a new, quite extraordinary multilateral intellectual property treaty came into existence.  The Marrakesh Treaty to Facilitate Access to Published Works for the Blind – the treaty’s full title is even longer – is the world’s only IP treaty dedicated to harmonizing exceptions and limitations.  It is also only the second multilateral treaty the world has ever seen dedicated to the needs of persons with disabilities.  The Marrakesh Treaty is important for both the problem it addresses and its unique status in international intellectual property.

Historically, international copyright agreements establish minimum standards of protection while exceptions and limitations to copyright are largely left to the discretion of national law (subject to an overarching framework called the “three step test”).

That means that there is tremendous variation among exceptions in national copyright laws.  At the same time, there is also considerable consistency – some of that from inheritance of common legal systems; some from common, loosely coordinated responses to technological developments; and some from bilateral agreements.  To give an example of both consistency and variation, of the 160 countries that belong to the Berne Convention, the basic international copyright treaty, there are 125+ that have exceptions of one sort or another for libraries.

A far smaller number – less than 60 – have national-law copyright exceptions for the blind, i.e., exceptions that permit (one way or another) the making of “accessible format copies” – braille, digital braille, or navigable audiobook versions – for persons who cannot read normal print.  There is nothing that keeps the remaining 100 countries from enacting exceptions for the blind – India passed such a law in 2012 – but the “uptake” on national-law exceptions for the blind has been slow, too slow.

But an even greater problem for the blind is the lack of cross-border exchange of accessible format copies once they are made.  Spain’s national organization for the blind, ONCE, has a huge library of accessible format works – so a blind Spanish-speaker in Seville or Madrid has access to a much greater world of literature and information than a blind Spanish-speaker in Lima or Managua.  Today accessible format copies are rarely shared across borders – and that means either that there are wasteful, duplicative efforts to make accessible versions of the same book or titles are simply unavailable – what the World Blind Union rightly calls a “book famine.”

The World Intellectual Property Organization (WIPO) began serious discussions of these problems a few years ago, first with a WIPO-commissioned study and then with a series of specific proposals from member states.  Initially, Brazil, Ecuador, and Paraguay proposed a treaty on behalf of the World Blind Union, followed by separate proposals from the United States, the European Union, and WIPO member states from Africa (the “Africa Group”).  Working from these proposals, a core group of countries in early 2011 started developing a single text, a text that ultimately became the Marrakesh Treaty.

As finalized, the Marrakesh Treaty calls for countries to adopt national-law exceptions for the blind and provides a detailed, optional system for such national law based on “authorized entities” – nonprofits, designated government entities, and libraries that serve the blind.  The treaty provides detailed standards for persons who should benefit from exceptions, works subject to the exceptions, accessible formats, and how authorized entities should conduct their activities.

In fact, this problem was the initial focus for the United States in a proposal the Administration made at WIPO in 2010.  The final Marrakesh Treaty provides that countries should permit the cross-border exchange of accessible format copies and expressly sets out how authorized entities can exchange copies with each other – or serve blind people directly in other countries.  In other words, a U.S.-based nonprofit like Benetech’s BookShare program could eventually serve blind people in dozens of countries.

These problems and their solutions seem so straightforward that one might wonder why all the controversy – and why did so many people think that the negotiations in Marrakesh would fail?

First, some believed that the blind issue was being used as a means to weaken copyright protection overall.  That perception, in turn, triggered concern if not opposition from some intellectual property holders (including some patent owners).  Separately, representatives of some developing countries came to believe that the World Blind Union – the initial advocate for a treaty – represented the needs of the blind in developed countries, not the reality on the ground for disabled people in Sub-Saharan Africa or parts of Asia.  These dynamics greatly complicated the negotiations.

At a more structural level, no matter how narrow the principles or provisions being discussed, everyone viewed a treaty on copyright exceptions for the blind as a precedent.  For copyright holders, the single most important precedential issue was ensuring that the three-step test remained the sine qua non of copyright exceptions and limitations.  But concern for precedential effect was hardly limited to the copyright owners.  For example, libraries sometimes objected to proposals that blind organizations were prepared to accept – the libraries’ concern being partly that publishers might later argue that standards applied to services for the blind should also be applied to other library activities and patrons.

It will be years before we can even begin to judge if the Marrakesh Treaty “works,” that is, whether the standards and systems set out in the Marrakesh Treaty will succeed in ameliorating the book famine.  In the years to come, countries will have to ratify the treaty, implement its provisions, and – most challenging – build up the practical capacity of authorized entities around the globe to serve the needs of persons with print disabilities.

But we know now that the process that culminated in Marrakesh worked in the sense that reasonable compromises were found to shape copyright law to serve an important social purpose, while still protecting the interests of authors and the financial incentives that make copyright law an engine of expression, wealth creation, and cultural renewal.

In that sense, the Marrakesh Treaty provides an alternative narrative for those who have witnessed the paralysis of copyright policy in Washington.  In that alternative, copyright’s staunchest defenders would be open to discussions on how other key exceptions and limitations can be improved, while the staunchest critics and skeptics of today’s copyright law should be open to discussions on how to improve copyright enforcement, particularly against operations that profit commercially from systematic piracy.  Better exceptions and better enforcement are part and parcel of a better copyright system, both globally and at home.