Open Journal Systems
The Treaty of Marrakesh: From Good Law to Good Implementation
by Dick Kawooya, Karen Keninger, Victoria Owen and Winston Tabb
On October 5, 2016, the World Intellectual Property Organisation (WIPO) hosted the first Marrakesh Assembly, bringing together the 22 countries which had already ratified the Treaty of Marrakesh. During the ceremonies, two additional countries submitted their ratifications, and another followed suit later that week.
The Treaty of Marrakesh – or the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled – went from adoption (on June 27, 2013) to implementation (September 30, 2016) more quickly than any WIPO copyright treaty in the last forty years. 
The Treaty mandates its signatories to create provisions for the making of accessible format copies of published works, and for these copies to be shared, within and across borders, without seeking permission from copyright holders. It gives a specific role to "authorised entities," often libraries or organisations for the blind, in copying and sharing works. 
It could not have come too soon. At present, those working with people with print disabilities must negotiate a complex and disjointed system of national provisions for making accessible format copies of books. Add to this the fact that market forces have proven incapable of supplying a sufficient volume and variety of works in accessible formats, and the result is a "book famine," or a scarcity of accessible format copies of books around the world. The situation is particularly serious in developing countries.
The first Marrakesh Assembly was therefore marked by a sense of satisfaction at having made a step that promises to go a long way towards ending the book famine. 
However, the chorus of support for the Treaty of Marrakesh in the room on October 5 should not obscure the fact that the negotiation process was long and difficult, with significant opposition from certain governments and lobbies.
Countries now looking to implement the Treaty will be pressured – often by these same opposing forces – to create new barriers to access. NGOs and others who want to see effective universal application will need to resist these efforts. This article discusses the opposition faced during the negotiation process and ongoing risks for implementation.
As such, it offers a guide to where libraries and library associations should focus their attention to ensure that the spirit and ambitions of the Treaty of Marrakesh become reality.
A good text, but with room for bad implementation
In the years before the adoption of the Treaty, active efforts were underway narrow the scope of its proposals. A series of emails released to Knowledge Ecology International by the U.S. government show repeated attempts by organisations representing rightholders to compromise the Treaty. 
Some countries around the table were receptive to such lobbying and sought to narrow the scope of the treaty. Japan proposed that only those countries that had already signed the WIPO Copyright Treaty or TRIPS agreement would be allowed to approve the Treaty of Marrakesh.  The E.U. and U.S. sought to limit the right to create and share accessible format copies to situations where there were no commercially available options. 
While the final text is broadly good, the results of this struggle remain visible.
The final text makes an (unprecedented) four references to what is known as the Three Step Test.  This concept refers to the provision in previous international treaties which restrict the exercise of limitations on copyright (in this case copying) to "certain special cases provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author/rightholder." The effect of this insistence on the Three Step Test is to restrict the possibilities open to libraries, library users and the general public to access and make use of copyrighted work.
Moreover, the Treaty gives signatories the option of imposing restrictions on the creation and sharing of accessible copies by beneficiaries and authorised entities.
These restrictions include the "commercial availability checks" referenced above  – the obligation to verify that accessible format copies are not already available on the market – and a requirement to offer additional remuneration to rightholders for such copying and sharing (effectively a licensing scheme).  In addition, the provisions on record-keeping responsibilities for authorized entities do not make it clear that such obligations should be proportionate.
The fact that these provisions are optional (countries "may," rather than countries "shall") reflects the reality of the closing stage of the negotiations. Some countries had already imposed commercial availability checks or additional remuneration to rightholders. Writing these provisions in this way made it possible for them to sign without committing to major changes in their own national legislation.
However, as the World Blind Union  and EIFL  have underlined, the intention – the spirit – of Marrakesh is that such restrictive provisions should be the exceptions, not the rule. It should not be forgotten that Marrakesh was intended to address existing conditions that led to the book famine, namely the (economically rational) choice by publishers not to make books available in the right formats to people with visual impairments, and the costs and complexity that prevented libraries and other authorized entities from filling the gap.
Avoiding new barriers to access to knowledge: The need for vigilance
It is at the national level that battles over whether to erect such barriers to access to knowledge are being, and will continue to be, fought.
The work of the Australian consultation on implementation give an indication of the tone of the debate in a country where commercial availability checks and statutory licenses were already in place. 
While rightholders have tended to argue that no change is necessary, libraries have underlined that commercial availability checks often lead to beneficiaries failing to receive an accessible format copy of a work that they require. Moreover, the application of such a check has been likened to telling a library user with visual impairments that unlike everyone else, they have to pay in order to read the book in front of them.
Similarly, remuneration obligations draw away resources from the (expensive) task of making accessible format copies of books. Libraries and other authorised entities not only have to buy an edition of the book they are looking to copy, but will likely have to destroy this original edition in the process of creating an accessible format copy.
Meanwhile, the need to make a request every time a work is supplied to a new beneficiary, as well as to keep detailed records, is onerous, and would be disproportionate, in particular for smaller libraries and institutions.
Nonetheless, there are those proposing that such barriers should be constructed in order to protect copyright holders. The guidance offered by the International Federation of Reproductive Rights Organisations (IFRRO) to its members is clear, calling on them to make the case for commercial availability clauses and additional remuneration of rightholders. 
Notably, IFFRO says it regrets that, in the Treaty, the need to preserve the privacy of beneficiaries was not balanced against the need to ensure adequate copyright protection. In fact, the Treaty includes numerous provisions on avoiding misuse of accessible format copies made elsewhere. As IFLA has underlined, the aim of implementation measures should be to support those public and charitable bodies looking to assist people with print disabilities, not treat them as potential criminals. 
In the U.S., there is an ongoing discussion on the types of records that authorized entities should maintain on their activities and clients. In Ghana and Kenya, indications are that a remuneration clause will be introduced.  With other countries at varying stages of implementation, it is currently unclear where else such new barriers could be under consideration.
As underlined, the Treaty of Marrakesh offers a broadly good legal basis for change. It is also historic in the context of international copyright agreements as the first Treaty to focus on access to knowledge, rather than the creation or strengthening of rights. As such, it promotes that balance between access and rights that is held to be at the heart of copyright.
However, vigilance is still required. For the original intention of the member states who signed the Treaty to be respected, libraries, blind organisations and other NGOs will have to be watchful of efforts to introduce commercial availability checks, remuneration obligations and onerous record-keeping requirements. Such new barriers would restrict rather than broaden access. This is not the outcome that people with visual impairments fought for or deserve.
Moreover, while the focus here has been entirely on the laws which, at the national level, permit the Treaty's implementation, there are major practical questions.
The number of books shared across borders under Marrakesh remains negligible. IFLA is engaged in WIPO's Accessible Books Consortium (ABC), which works to facilitate such exchange.  In order to find the best way of giving cross-border access, the case can be made for the development of a variety of mechanisms, involving libraries, other institutions and potentially other parties, in order to provide maximum access within the bounds of the law.
Here, as with national level ratification, now is not the time to rest. 
About the AuthorsDick Kawooya is assistant professor at the University of South Carolina, focusing on questions around intellectual property and access to knowledge. He is a librarian by background, having studied in Uganda and the U.S. He was part of the African Union Expert Group that first proposed looking at exceptions and limitations at WIPO.
Karen Keninger is director of the National Library Service for the Blind and Physically Handicapped in the U.S. Library of Congress. She is also chair of the IFLA section on Libraries Serving Persons with Print Disabilities (LPD), which leads IFLA on advocacy for library services that are equitable and accessible for persons with a print disability.
Victoria Owen is chief librarian, University of Toronto, Scarborough, Canada. She is a former chair of IFLA's advisory committee on Copyright and other Legal Matters. She was director of library services at the Canadian National Institute for the Blind from 1993-2004. She was present at the Diplomatic Conference convened to conclude the Treaty of Marrakesh in 2013.
Winston Tabb is dean of University Libraries and Museums at Johns Hopkins University. He is the head of the IFLA Delegation to WIPO's Standing Committee on Copyright and Related Rights. He is a former chair of the IFLA Professional Committee and the advisory committee on Copyright and Related Rights. He was present at the Diplomatic Conference convened to conclude the Treaty of Marrakesh in 2013.
Endnotes The full text is available on the WIPO website: http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=301016. ↵
 As defined by Article 2(c) of the Treaty, an ""authorized entity" means an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis. It also includes a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations". In practice, libraries and charities serving persons with visual impairments are likely to form the bulk of authorized entities, at least in the short term. ↵
 World Blind Union, "Millions of People are Denied Access to Books and Printed Materials," April 23, 2016, http://www.worldblindunion.org/English/news/Pages/Millions-of-People-are-Denied-Access-to-.aspx. ↵
 US Patent and Trademark Office, Freedom of Information Act (FOIA) Request No. F-13-00172 (addressed to James Love, Director, KEI), June 5, 2013, http://keionline.org/sites/default/files/F-13-00172_OCR_Final_Response.pdf. See also Brook K. Baker, "Challenges Facing Proposed WIPO Treaty for Persons Who are Blind or Print Disabled" (paper presented at the Law and Society Association Annual Meeting, June 2, 2013) http://keionline.org/sites/default/files/ChallengesFacingProposedWIPOTreatyforDisabilities.pdf. ↵
 FOIA Request No. F-13-00172, pp. 3, 27 and others. ↵
 Jim Fruchterman, "Poisoning the Treaty for the Blind," Huffington Post, May 7, 2013, http://www.huffingtonpost.com/jim-fruchterman/poisoning-the-treaty-for-_b_3225181.html. ↵
 Berne Convention 9(3), TRIPS Article 13, and the WIPO Copyright Treaty Article 10(1). ↵
 Article 4(4): "A Contracting Party may confine limitations or exceptions under this Article to works which, in the particular accessible format, cannot be obtained commercially under reasonable terms for beneficiary persons in that market […]" ↵
 Article 4(5): "It shall be a matter for national law to determine whether limitations or exceptions under this Article are subject to remuneration." ↵
 World Blind Union, "The Treaty of Marrakesh Explained," http://www.worldblindunion.org/english/news/Pages/The-Treaty-of-Marrakesh.aspx, accessed October 15, 2016. ↵
 EIFL, "The Treaty of Marrakesh – a Guide for Libraries," December 2014, 8, http://www.eifl.net/sites/default/files/eifl-guide-marrakesh_en_1.pdf. ↵
 Australian Government, Department of Communication and the Arts, "Marrakesh Treaty Options for Implementation," 2014, https://www.communications.gov.au/have-your-say/marrakesh-treaty-options-implementation. Accessed 15 October 2016. ↵
 IFRRO General Counsel, "Analysis of WIPO Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired, or otherwise print disabled," July 5, 2013, http://www.ifrro.org/sites/default/files/wipo_marrakesh_treaty_ifrroanalysis_july2013_2.pdf. ↵
 IFLA, "European Commission (Almost) Does the Right Thing on Marrakesh," September 22, 2016, http://www.ifla.org/node/10879. ↵
 As underlined at a WIPO-organised seminar in Gaborone, Botswana, held on July 28-29, 2016. ↵
 See IFLA news story: http://www.accessiblebooksconsortium.org/portal/en/index.html. ↵
 IFLA welcomes further suggestions and exchange on the issues mentioned in this article. Please contact Stephen.email@example.com for more information. ↵
Copyright (c) 2016 Dick Kawooya, Karen Keninger, Victoria Owen, Winston Tabb