Using International Intellectual Property Law as a Tool to Break Down Barriers: Key Takeaways from the Marrakesh Experience

I. Introduction

That persons with disabilities, despite constituting the world’s largest minority, have hitherto lacked access to the tools, resources and institutions that can help them thrive on an equal footing with their able-bodied counterparts is a platitude. While their marginalization is attributable in large part to the stereotypes about the disabled that dominate public discourse, systemic and structural barriers to access are equally responsible for this sorry state of affairs.

The United Nations Convention on the Rights of Persons with Disabilities (“the Convention”) was expected to create a robust legal architecture for smashing down these barriers. However, it is dismaying to note that the promises that the Convention embodies – of ensuring accessible education, dignified employment and social participation – have remained confined to paper thus far, with countries such as the United States and Ireland refusing to ratify the Convention to date.

Even though international institutions, led by the United Nations, have taken a number of concrete measures over the last decade to foster acceptance of disability as a facet of human diversity, one issue that has received little attention is lack of access to the written word to the disabled – what scholars have described as the book famine.

While at first blush one may think that this problem does not have any far-reaching ramifications, a deeper reflection indicates otherwise. As Krista L. Cox notes: “Access to knowledge, such as that commonly found in the written word, is fundamental to a number of human rights that include, inter alia, the rights to take part in society, participate in cultural life, enjoy the benefits of scientific progress, exercise freedom of opinion and expression, seek and impart information, education and employment opportunities.”

The importance of education, that is principally imparted through the written word, can hardly be overemphasized – as Chief Justice Earl Warren noted in the celebrated case of Brown versus Board of Education, “Today it [education] is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”

And yet the right to education has not globally been made available to persons with disabilities on equal terms. This is attributable, in large part, to the absence of a coherent and legally enforceable international agreement, providing for the conversion of written material into accessible formats, resulting in a complete lack of uniformity or clarity in the exceptions in the copyright laws of different jurisdictions for the benefit of the print-impaired. Indeed, only around 60 countries have engrafted exceptions into their copyright laws for the benefit of the disabled thus far.

This problem is further exacerbated by the fact that there is a wide divergence in the language and scope of the exceptions in different domestic copyright laws. In China, for instance, Article 22(12) of the law makes it clear that only individuals using Braille are legally entitled to receive written material in an accessible format, with Braille being the only such legally sanctioned format.

In Germany, on the other hand, Article 45a envisages the conversion of the concerned material into any format that is accessible to disabled persons.
Similarly, Australian copyright law states that the conversion can be undertaken only by an organization administering an institution assisting persons with print disabilities or the holder of a radio license. In Italy, the government is empowered to authorize organizations to undertake the conversion by a ministerial decree. On the other end of the spectrum, no such restrictions exist in the exceptions in the copyright laws of Hungary and Greece.

Recognizing the need for clear international norms to deal with this problem, Article 30.3 of the Convention states as follows: “States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials.”

Consistent with the mandate of Article 30.3, the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (“the Treaty”) available here, signed by 51 countries on 27th June, 2013, carries the promise of breaking down barriers to access to the written word for more than 300 million visually impaired persons across the globe.

II. Key Features of the Treaty

The Treaty, aimed at the creation of a solid legal foundation for ensuring the widespread dissemination of accessible content, recognizes in the preamble: “many Member States have established limitations and exceptions in their national copyright laws for persons with visual impairments or with other print disabilities, yet there is a continuing shortage of available works in accessible format copies for such persons…”

The Treaty seeks to address these barriers in two key ways, as the World Blind Union notes.

First, it calls upon Contracting Parties to carve out exceptions and limitations in their copyright laws that can help secure the right to read for the blind on a firm legal footing. More specifically, Article 4(2) asks Contracting Parties to craft exceptions in their copyright laws in such a way as to enable authorized entities to make accessible format copies of works that are lawfully obtained and to disseminate them amongst legally entitled beneficiaries on a nonprofit basis. Pertinently, the Treaty, vide Article 2 (c), defines the term ‘authorized entity’ in a capacious way, including within its fold any governmentally recognized, nonprofit or government organization that provides access to information to beneficiaries i.e. the print-impaired on a nonprofit basis.

Second, it creates a legal basis for the cross border transfer of accessible books without the consent of copyright owners. More specifically, Article 5(2) delineates the specific form that such a provision should take, making it clear that authorized entities must be permitted to distribute accessible format copies to authorized entities and beneficiaries in other Contracting Parties who are in need of such accessible copies. This is further buttressed by Article 6 which allows authorized entities in the importing country to obtain accessible format copies without the prior consent of the copyright owner.

Two other features of the Treaty merit emphasis.

First, anti-circumvention measures, while doubtless designed to further the laudable object of preventing the illegal usage of intellectual property in cyberspace, often have the unintended consequence of preventing the public from accessing and disseminating copyrighted material that they are otherwise perfectly entitled to do under the exceptions and limitations carved out by the concerned copyright law. Article 7 of the Treaty, in recognition of this impediment to access, makes it clear that Contracting Parties are bound to ensure that such anti-circumvention measures do not prevent the visually impaired from accessing copyrighted material.

Second, recognizing the importance of striking an appropriate balance between the right of the disabled to access written material on the one hand and the right of authors to be fairly compensated for their intellectual labour on the other, Article 11 makes it clear that Contracting Parties must craft the exceptions in their copyright laws in such a way as to ensure that the same do not unreasonably prejudice the legitimate interests of authors.

III. Wider ramifications of the Treaty

Earlier this year, Canada became the 20th nation to ratify the Treaty, resulting in the Treaty coming into force on the 30th of September.

While the robust enforcement of the Treaty is eagerly awaited, there are at least 3 key long-term implications flowing from this event that warrant emphasis.

First, as Professor William Fisher has noted, amongst all the seven multilateral intellectual property treaties that have been signed to date, the Treaty is the only one which seeks to limit, as opposed to expanding, the scope of copyright protection. Since the negotiation and drafting of the Treaty was largely driven by public interest organizations, its enforcement is likely to pave the way for the greater participation of such organizations in the negotiation and drafting of similar multilateral treaties.

Second, while there exist several international instruments that recognize the rights of the disabled in general and sweeping terms, this Treaty is, arguably, the first international legal instrument that seeks to address a specific impediment that the visually impaired face and aims to deal with it in a concrete and tangible way. Ergo, if the potential of the Treaty is substantially realized, international lawmakers are more likely to engage in crafting legal instruments that deal with particular problems as opposed to enunciating principles at a high level of abstraction.

Finally, at a time when the growth of copyright law is being significantly impaired by the failure of policymakers to forge a workable consensus on issues of critical importance, the Treaty, as Professor Justin Hughes argues, provides an alternative narrative for how reasonable compromises can be found to promote the social purpose undergirding copyright law while also safeguarding the interests of authors. Such a balance, as Hughes notes, reaffirms the proposition that lawmakers can reconcile competing interests in such a way as to ensure that copyright law continues to remain “an engine of expression, wealth creation, and cultural renewal.”

IV. Conclusion

People with disabilities, as Marcia H. Rioux famously noted, “provide us with a means to understand the way in which social life can be organized to be fair, to be just, to be humanitarian, to be equal.”

At a time when international intellectual property law is increasingly being used as an instrument to make essential commodities costlier, powerful businesses stronger and the chasm between the Global North and the South wider, the Treaty, as I hope to have demonstrated through this article, provides us with a means to understand the way in which international IP law can be used as an instrument to create a global order that is not only fairer, but also more just, humanitarian and equal.

In the final analysis, it would be no exaggeration to state that the Treaty will not only shape the future of the world’s 300 million visually impaired persons, but, more fundamentally, its success or failure will determine whether international IP law will continue to be used a tool for erecting barriers, as some thinkers would have us believe, or for actually breaking them down, as the Treaty hopes to do.

Rahul Bajaj

Rahul Bajaj is a fourth year law student at the University of Nagpur. His interest in intellectual property law began taking a concrete shape when he pursued Professor William Fisher's online course on copyright law in the second year of law school. Since then, Rahul has worked on a diverse array of IP matters during his internships. He is particularly interested in studying the role of intellectual property law in facilitating access to education.

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