40 Years Of Copyright Obstruction To Human Rights And Social Justice

One of the little-known but extremely telling episodes in the history of modern copyright, discussed in Walled Culture the book (free digital versions available), concerns the Marrakesh Treaty. A post on the Corporate Europe Observatory (CEO) site from 2017 has a good summary of what the treaty is about, and why it is important:

It sets out exceptions and limits to copyright rules so that people unable to use print media (including blind, visually impaired, and dyslexic people) can access a far greater range of books and other written materials in accessible formats. These exceptions to copyright law are important in helping to combat the ‘book famine’ for print-disabled readers. The Marrakesh Treaty is particularly important in global south countries where the range of materials in an accessible format – usually expensive to produce and disseminate – can be extremely limited.

Its importance was recognised long ago, as indicated by a timeline on the Knowledge Economy International (KEI) site:

In 1981, the governing bodies of WIPO and UNESCO agreed to create a Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Produced by Copyright. This group meeting took place on October 25-27, 1982 in Paris, and produced a report that included model exceptions for national copyright laws. (UNESCO/WIPO/WGH/I/3). An accessible copy of this report is available here.

And yet it was only in 2013 – 31 years after the original report – that the treaty was finally agreed. The reason for this extraordinary delay in making it easier for the visually impaired to enjoy even a fraction of the material that most have access to is simple: copyright. As KEI’s director, James Love, told Walled Culture in an interview three years ago: “the initial opposition was from the publishers, and the publishers did everything you can imagine to derail this [treaty]”. The CEO post explains why:

Industry’s lobby efforts have attempted to re-frame the Marrakesh Treaty away from being a matter of human rights, education, and social justice, towards a copyright agenda by portraying it as a threat to business’ interests.

Indeed, even industries well outside publishing lobbied hard against the treaty. For example:

Caterpillar, the machinery manufacturer, joined the campaign to oppose it, apparently convinced that the Treaty would act as a slippery slope towards weaker intellectual property rules elsewhere.

As the CEO article noted, after the Marrakesh Treaty was agreed, several EU member states insisted on it being watered down further:

contrary to the obvious benefits of the ratification and implementation of the Marrakesh Treaty for the 30 million blind or visually-impaired people in Europe (and 285 million worldwide), several EU member state governments have instead bought the business line that these issues should be viewed through the lens of copyright.

That was eight years ago. And yet – incredibly – the pushback against providing the visually impaired with at least minimal rights to convert print and digital material into forms that they could access has continued unabated. A recent post on the International Federation of Library Associations and Institutions (IFLA) blog analyses the ways in which the already diluted benefits of the Marrakesh Treaty have been diminished further:

it has become clear that there are a number of ways in which it is possible to undermine the goals and intent of the Marrakesh Treaty, ultimately limiting the progress of access to information than would otherwise be possible.

This article highlights examples from countries that are arguably getting Marrakesh implementation wrong. The list below illustrates provisions (or a lack of provisions) to avoid because they undermine the purpose of the treaty and create barriers to access for people with disabilities.

One extraordinary failure to implement the Marrakesh Treaty properly, a full 40 years after it was first discussed, is “where laws have set out that authorised entities need to be registered in order to use Marrakesh provisions, but then there is no way of registering.” According to the IFLA this is the case in Brazil and Argentina. Just slightly better is the situation where “only certain institutions and libraries should count as authorised entities.” Clearly, this “may have the effect of limiting the number of service providers, and place an additional burden on institutions.” Another problem concerns remuneration:

The Marrakesh Treaty includes an optional provision for remuneration of rightholders. This non-compulsory clause was added in order to secure support during negotiations, but undermines the Treaty’s purpose by allowing the payment of a royalty for an inaccessible work, and creates a financial and administrative burden, ultimately drawing resources away services to persons with disabilities.

Germany is a disappointing example of how new barriers can be placed in the way of the visually impaired by adding unjustified and exorbitant costs:

a fee of at least €15 is charged for each transfer of a book for each individual format. Fees (approx. 15 cents) are also charged for each download or stream of a book. Additionally, fees are charged for obtaining books from other German-speaking countries and for borrowing them. This leads to considerable costs, which inevitably result in a decline in purchases and the range of services offered.

Another obstacle is the requirement in some countries for “a commercial availability check for a work in an accessible format, when the very purpose of the Marrakesh Treaty was to address a market failure.” As the IFLA post rightly points out:

A commercial availability check is unnecessary – libraries will buy books in accessible formats where they can, as it is far more cost effective to purchase the work than produce it in accessible format. Yet Canada has introduced such a provision, and indeed even requires a second check when exporting books. It is burdensome to expect a library to conduct a search in a foreign market and be 100% sure that a book is not available in a given format there. Often the information simply is not available. Such provisions therefore create unacceptable liability, chilling the sharing of books. 

Finally, there are countries that have joined the Marrakesh Treaty, but have done little or nothing to implement it:

a recent piece from Bangladesh highlights how delays in reforming domestic copyright laws, coupled with underinvestment, have meant that three years on from ratifying the Treaty, persons with print disabilities are still waiting for change. Similarly in South Africa, despite a judgement from the Constitutional Court, the necessary reforms to implement the Treaty are still being held up.

The Marrakesh Treaty saga shows the copyright industry and its friends in governments around the world at their very worst. Unashamedly placing copyright’s intellectual monopoly above other fundamental human rights, these groups have selfishly done all they can to block, hinder, delay and dilute the idea that granting the visually impaired ready access to books and other material is a matter of social justice and basic compassion.

Follow me @glynmoody on Mastodon and on Bluesky. Originally posted to Walled Culture.