What is in the Treaty of Marrakesh?

The View from an Authorized Entity 

Many Bookshare users (and potential Bookshare users!) have been asking about the Treaty of Marrakesh (formal name: The Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities. What’s in it; what does it mean; how does it affect Bookshare members?

In the popular online acronym, IANAL (I am not a lawyer). However, as the founder of the Bookshare online library, we have a great deal at stake in how the Treaty gets implemented. Although it might seem like a complicated document, we’re really excited about it because we think it will greatly improve global access for people with bona fide print disabilities. Here’s our laymen’s take on the major provisions of the Treaty.

The Treaty of Marrakesh, Top Issues:

What’s the goal of the Treaty?

The goal of the Treaty is to end the book famine for people who are blind, visually impaired or otherwise print disabled. Ultimately, this community should have equal access to all of the books that are needed for education, employment and social inclusion.

How Does the Treaty Meet this Goal?

It does that in two main ways. First, it makes creating a national domestic copyright exception an obligation of countries that ratify the Treaty. That makes it legal in these countries for people with these disabilities, and the organizations that serve them, to make accessible versions of books without having to get permission from the author or publisher. Second, the Treaty allows for easier import and export of accessible versions of books and other copyrighted works. This will reduce duplication of efforts in different countries in adapting the same title. Plus, it will especially help countries with less-developed libraries and services for people with disabilities by making it easier to tap large collections (like Bookshare) in other countries.

Noteworthy Articles in the Treaty:

Article 2(a). Works Covered. “literary and artistic works … in the form of text, notation and/or related illustrations, whether published or otherwise made publicly available in any media;”. So, this means books, periodicals and other similar textual works, including audio versions of those titles. It covers music in the form of sheet music, but not audio or videos of performances. It doesn’t cover movies.
Article 2(c). Defines Authorized Entity. The role of the Authorized Entity is critical in the Treaty, and it’s a straightforward definition. It’s a nonprofit or government agency that makes accessible copies of Works, and limits distribution of those copies to people with bona fide disabilities, the “Beneficiary Persons,” defined in the next article.
Article 3. Defines Beneficiary Persons. It’s a great definition that includes just about any disability that interferes with the effective reading of printed material. It includes people who are blind, visually impaired, reading disabled (example: dyslexia) or have a physical disability that gets in the way of effectively holding a book, turning pages or focusing on the page. We don’t think it changes who qualifies for Bookshare in the United States, though, but we’re delighted that it clearly included people with learning disabilities like dyslexia, who represent over 75% of our current users in the United States.
Article 4. Countries should enact a domestic copyright exception so that Authorized Entities can make accessible copies of Works without getting permission from the rightsholders. This is satisfied by having a law like the Chafee Amendment in the U.S., or similar laws in other countries like India and the EU.
Articles 5 and 6. Cross border exchange to be permitted, both between authorized entities and directly from one authorized entity to individuals in other countries. This is really important for Bookshare, which has implemented the ability to both partner with schools and organizations to download books for specific individuals (our organizational account) and for individuals with disabilities to download books themselves (our individual account, “having your own library card”). We think of this latter capability as crucial for equality and autonomy for our members, to have the ability to choose the books they want to read without needing an intermediary.
Article 7. Technological Protection Measures. These are the digital locks that make it hard to copy digital content. They are intended to prevent the making of illegal copies, but often have the unintended consequence of stopping access by people with disabilities who need the text to be spoken aloud or converted into Braille or large print. This article says it should be legal to circumvent TPMs so that a person with a print disability can get access to books. This is a crucial provision for the future, because more and more books will be published solely in digital form.
Article 8. Respect Privacy. When implementing the Treaty provisions, countries should ensure that the privacy of people with disabilities is protected equally as that of people without disabilities.

Other Noteworthy Provisions in the Treaty

Respect for copyright holders’ interests 

Article 2 of the Treaty makes it clear that accessible books sent under its provisions should be solely for the use of “beneficiary persons.” It asks also that “authorized entities” take “due care” when handling these books, and that they discourage the reproduction and distribution of unauthorized copies. These are reasonable requirements, and ones Bookshare takes seriously.

Commerciality

One of our big concerns going into the Treaty negotiations was that import/export of accessible copies would be subject to a general commerciality requirement. This survived in the Treaty in a much weaker form, which allows countries to choose to have a commerciality requirement in their copyright law, which some countries like Singapore and Australia already do have. Such countries have to let WIPO know formally that their domestic law requires a commerciality test, and I believe they also have to let WIPO whether it affects imports of accessible materials into that country from elsewhere.

The Three Step Test

This arcane bit of international copyright law caused a lot of concern among advocates that it might be a Trojan horse for more extensive commerciality requirements. It shows up a bunch in the treaty, but we don’t think it is likely to get in the way of helping blind people except in rare situations.

The Treaty for Americans with Disabilities 

People with print disabilities in the United States are going to be pretty happy with the Treaty. It’s consistent with existing U.S. law, plus it has import and export provisions between countries. Since it takes twenty countries to ratify the Treaty for it to become effective, and it doesn’t affect Americans until the U.S. Senate ratifies the Treaty, actual differences won’t be seen for at least a year and maybe longer. Once the Treaty is in effect, we expect that existing Bookshare users will qualify under the Treaty’s terms for international accessibility. Bookshare will get more books published in other countries, in far more languages. Americans come from a wide, wide variety of ethnic, linguistic and cultural backgrounds, and the Treaty will especially improve access for Americans with disabilities. Our users will be able to directly request materials from libraries in other countries: we’d like to set it up so that Bookshare membership is sufficient proof of disability.

The Treaty for the Rest of the World

The Treaty will have a huge impact on accessibility for people with print disabilities. It should both promote the domestic production of accessible materials in each country, as well as provide access to books produced elsewhere. This will be important for books in languages that cross national boundaries, languages like English, Spanish, French, Portuguese, Russian, Chinese, Bangla/Bengali, Indonesian, Swahili and so on. It will also be especially important for countries that haven’t traditionally had robust services for people with disabilities: these less wealthy countries should benefit greatly from access to the extensive collections developed in wealthier and larger countries. Bookshare expects to make extra efforts to assist with this expanded access: it’s part of our mission to help people with disabilities around the world.

Conclusion

In plain language, this is a Treaty that should start to remedy the book famine. It provides a crucial legal framework for adoption of national copyright exceptions in countries that lack them. It creates an international import/export regime for the exchange of accessible books across borders. It is necessary for ending the book famine, but it is not sufficient. Countries need to sign, ratify and implement its provisions. And, nonprofit organizations, libraries, educational institutions and government need to take advantage of these provisions to actually deliver the accessible books people with disabilities need for education, employment and full social inclusion. The Bookshare team looks forward to working with the World Blind Union and our peer libraries all over the world to implement the Treaty and fully end the book famine for people with print disabilities.