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
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
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,
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
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
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 Authors
Dick 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
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.
 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. ↵