A historic day in Marrakesh: WIPO passes first global copyright exemption

One more tiny change to the title and it was done! After four years of preparatory work and a lot of discussion, a conference of the World Intellectual Property Organization in Marrakesh on June 27 formally accepted a new treaty to facilitate the access to printed books by visually impaired people. "It is a historic event and a historic day," said Conference Chair Mustapha El Khalfi, Marocco's Minister of Communication. The new treaty obliges member states to establish an exception from copyright for visually blind persons and persons with print disabilities and allows cross-border sharing of accessibly formatted books. El Khalfi said the treaty gave globalisation a human face. Blind pop star Stevie Wonder is expected for a concert to celebrate the treaty on June 28 in Marrakesh.

Cross-border sharing could in an instance make a lot more works accessible to blind people all over the world, Dan Pescod, Vice President of the World Blind Union (WBU) and a Campaign Manager at the Royal National Institute for the Blind (RNIB) said. Suddenly, for instance, all of the 200,000 works shared by the US-based Bookshare in electronic Braille or highlighted text with audio for mobile devices get into reach of blind people in the United Kingdom. So far most of these could not be distributed by RNIB, because of copyright. The new treaty would certainly also fuel the development of more platforms sur as Bookshare and Pescod.

Beneficiaries satisfied with compromises

Several controversial issues were only ironed out during night sessions at the beginning of the second week in Marrakesh. Commercial availability checks (for those who have them in national legislation) will be an option for member states with regard to distribution in their territory. But organisations would not be prevented "to send accessible formats to users in other countries," Pescod said. A hard fought-for result, too: organisations like the RNIB or other member organisations of the WBU can cross-border distribute to individuals. They do not have to use another authorised organisation in the receiver's country.

Publishers until the end of the negotiations pushed against this, mainly because they were afraid of possible piracy by re-formatting of the copies for blind people. The International Publishers Association (IPA), in a first reaction on June 26, wrote to the Internet Policy Review that it was still in the process of analysing the details of the final draft.

Requests to include a three-step-test as another pre-condition ended up as a reference instead. The three-step-test is a mechanism that has been put in place in other treaties starting from the Berne Convention to limit exceptions. Signatories also will have to ensure that digital rights management does not weaken the enforcement of the exception. Given these results, even James Love, Director of the activist organisation Knowledge Ecology International (KEI), which had fiercely fought back against the influence of rightsholders over the years, wrote: "It is a very good, but also very complex agreement. But it is a very good outcome for blind people." KEI had deplored that other disabled people, like deaf people, and audiovisual content had been taken out of the treaty over the year-long preparations.

First step to regain balance in copyright system

After pushing for the protection of rightsholder interests, Group B countries (the developed countries including the European Union and the USA) on June 27 also expressed their satisfaction with the treaty. Belgium took the floor for Group B countries in the final plenary, calling the treaty "unique, exceptional" and at the same time "balanced."

Delegations from Latin America and Africa also enthusiastically welcomed the compromise, but had something else to say on "balance." Speaking for the African Group, the Algerian head of delegation said, this treaty was "only the first step in a long march to balance a system that for too long has taken care of mostly the interests of rightsholders, sometimes at the expense of the public interest." The treaty was not about "privileges, but instead about a duty fullfilled to provide disabled people with equal access," he said. A representative of GRULAG, the Latin-America Country Group underlined it was nothing else than a reaffirmation of the fundamental rights of non-discrimination and access.

Negotiating multi-laterally and transparent – it worked

The adoption of the treaty in Marrakesh marks the second successful WIPO round of negotiations in two years. After a new treaty on the protection for audiovisual performances (last year in Beijing), now WIPO managed to pass the first global exemption from copyright in its history. This is a rather stunning success given that for many years treaty negotiations seemed stalled and even failed at times (for the planned broadcasting treaty). WIPO Secretary General Francis Gurry in an interview with Intellectual Property Watch said, the Marrakesh success also shows that countries can get things done multi-laterally. More treaties are in the pipeline of the WIPO and certainly "balance" between more rights and more access will stay an issue.

What is more and what was pointed out immediately by US law expert Sean Flynn, the negotiations were done in a unusually transparent way, very much different from the closed door deal-making on the infamous Anti-Counterfeiting Trade Agreement. WIPO for some time now has not only been integrating stakeholders into its processes, even allowing them to make statements in some plenary sessions and listening-in on some negotiations, but also allowing some public dialing-in using webcasts. Draft texts were made available early, too. Flynn recommended to draw lessons with regard to ongoing negotiations, for example the closed door talks on the Trans-Pacific Partnership (TPP).