How the Marrakesh Treaty makes the Intellectual Property system more inclusive

The new treaty comes into effect Sept. 30. Canada’s involvement shows leadership in creating more inclusive copyright rules, writes Bassem Awad.

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September 29, 2016
A visually impaired guest reads braille during the launch of braille newspaper "Publinews Braille" in Guatemala City May 31, 2012. REUTERS/Jorge Dan Lopez

According to the 2014 World Health Organization fact sheet, 285 million people are estimated to be visually impaired worldwide. Among those, there are about 750,000 Canadians living with blindness or partial sight and around three million Canadians living with a print disability.

As of Friday, as the Marrakesh Treaty comes into force, persons with perceptual disabilities can finally have access to copyrighted works, ending the global book famine for those requiring accessible versions of printed materials.

The agreement is historical because the international community has devoted a special treaty exclusively to facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled. According to the United Nations Convention on Rights for People with Disabilities, “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.”

The treaty does not reduce existing international copyright protections provided in earlier treaties. It obliges signatory countries to introduce or maintain the making of copies in accessible formats as well as the distribution of those copies both domestically and internationally.

The new treaty also establishes a balanced system, reflecting how the international Intellectual Property (IP) system could better serve development. Given that the treaty comes into force Sept. 30, it is worth examining the leadership role Canada can provide going forward, by helping to further develop an inclusive global IP system that improves the way we share and protect information.  

It's a mark of progress that Canada signed the Marrakesh Treaty back in June, especially since our IP rules haven’t always made it easy for decision-makers to be nimble and adapt to changing economic and social needs.  

For many years, the unauthorized making of a copy in an accessible format such as braille, electronic text or audio, and its distribution constituted an infringement of the reproduction and distribution rights in Canada and most of the countries. Similarly, the export or import of accessible format copies could trigger infringement liability.

To help address these barriers, the treaty itself restricts the use of digital locks, by permitting the removal of technological restrictions on electronic books for the benefit of the blind and visually impaired.

To further improve access, the government of Canada amended the Copyright Act in June 2016 with specific provisions on access to copyright works. Bill C-11 introduced three main changes in the copyright act.

First, the bill permits non-profit organizations acting on behalf of persons with a print disability to reproduce copyrighted works (not films or music) in accessible formats without the permission from the copyright holder, provided that the work is not commercially available in a similar format. The treaty clarifies that beneficiary persons include persons who are blind, visually impaired, or print disabled or persons with a physical disability that prevents them from holding and manipulating a book. The new provision removes the prohibition on the creation of large print books as an accessible copy.

Second, the bill reduces the restrictions on exporting accessible materials regardless of the authors’ nationality by allowing non-profit organization to make the work available in other countries that are part of the treaty. Prior to the amendments, across border exchanges of an accessible format copy were allowed only where the author of the work was a Canadian citizen, a permanent resident, or a citizen of the destination country.

Third, the bill also exempts electronic books from the digital lock rules enacted in the 2012 copyright reforms that protect right-holders against the circumvention of popular consumer products. At the same time, the bill adopts a restrictive approach in the implementation of the Marrakesh treaty by requiring the non-profit organization to pay royalties to the copyright-holders.

The Marrakesh Treaty will likely stimulate demand for accessible materials printed for the visually impaired, and in this context, increase Canada leadership in the realm of disability rights and the way that IP policies should work to be more inclusive of all groups in the global knowledge economy. The treaty is an important moment for the global IP system as access to published works will surely help visually impaired persons fully integrate their contributions into all spheres of Canadian — and global — society.