On 30 September 2016, a new international treaty (the Marrakesh Treaty) designed to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled, comes into force.
The Marrakesh Treaty is administered by the World Intellectual Property Organisation (WIPO), a specialised agency of the United Nations. Other important intellectual property treaties administered by WIPO include the Patent Cooperation Treaty, the Madrid Agreement and Protocol, and the Hague Agreement, which together facilitate international applications for patents, trade marks and industrial design registrations.
As a body of the United Nations, WIPO has social responsibilities which include promoting creative intellectual activities generally and facilitating the transfer of technology to developing countries to accelerate economic, social and cultural development. As part of these broader responsibilities, for example, WIPO:
- hosts the WIPO GREEN platform which aims to promote innovation in and diffusion of green technologies;
- runs the Global Challenges program to raise awareness and understanding of the complex issues surrounding global health and access to medical technologies, innovation, technology transfer and trade; and
- is working towards a treaty on the protection of traditional knowledge, traditional cultural expressions and genetic resources.
The Marrakesh Treaty falls within WIPO’s broader remit to manage intellectual property rights in a way which benefits not just rights holders but society in general. The treaty itself creates a set of limitations and exceptions to copyright which are binding on participating countries. In particular, the treaty requires countries to permit the reproduction, distribution and making available of published text works in formats designed to be accessible to the visually impaired, and to permit cross-border exchange of such works.
Despite its good intentions, however, the Marrakesh Treaty has not been without controversy and many developed countries have not yet ratified it (although Australia, Canada and South Korea have).
In Europe there has been an ongoing dispute as to whether the European Union has the competence to ratify the treaty independently of the EU Member States. Several countries, including the Czech Republic, Finland, France, Hungary, Lithuania, Romania and the UK, have challenged the EU’s right to enter into the treaty. Some of the objections relate to the EU’s right to regulate cross-border exchanges of goods for non-commercial purposes, while other countries contend that WIPO’s humanitarian intentions are at cross-purposes with the EU’s obligations to liberalise and promote free trade within the bloc.
The dispute has delayed the EU’s ratification of the treaty and a case is currently pending at the Court of Justice of the European Union (although one Advocate-General of the court recently issued an opinion dismissing the Member States’ arguments). In any case, if the CJEU does rule in the European Commission’s favour permitting ratification to go ahead, amendments to the existing EU copyright directive will be required before accession to the treaty will be possible, presumably leading to further delays.
Even if the EU does proceed to amend its copyright legislation and ratify the treaty, it is unclear whether this could happen within a timescale for the changes to take effect in the UK before Brexit is implemented. Nevertheless, the UK does already provide a number of exclusions to copyright intended to benefit the visually impaired. In particular, disabled persons (including the visually impaired) and persons acting for them are permitted to make accessible copies (e.g. Braille or large print) of copyright works without infringing copyright, as can authorised bodies who may also supply disabled persons with intermediate copies of the works, subject to some exceptions.