February 18, 2016 | By Parker Higgins

A Tale of Two Treaties: Marrakesh and Beijing Both Make Their Way to the Senate

The White House has submitted two copyright treaties to the Senate for ratification: the Marrakesh Treaty, which would improve access to copyrighted works for people with visual and print disabilities; and the Beijing Treaty, which could create a new layer of monopoly rights for the creators of audiovisual works. International copyright treaties move slowly, so neither of these is a surprise. For years now, we've encouraged the adoption of Marrakesh and the rejection of Beijing.

The Marrakesh Treaty would go a long way towards addressing a shortage of accessible books that plagues print-disabled readers in many parts of the world. We described the problem when the agreement was finalized in Marrakesh:

People with reading and visual disabilities have faced a “book famine,” in which only 7% of published books are converted into accessible formats in the richest countries of the world. That number is even lower in the poorest regions, where only 1% of books are available. New technologies could have already drastically improved the state of things, but over-restrictive copyright has hindered the production and distribution of books in accessible formats. Only 57 of WIPO’s 184 Member States have legal exceptions to copyright for these purposes [pdf], and even worse, inconsistent policies between countries made it almost impossible to share books between countries.

The treaty ... carves out robust exceptions to copyright to make it legal for print disabled people and organizations to make copies of published works accessible. In addition, the treaty legalizes the import and export of accessible books without permission from publishers (removing a barrier that threatened to be a big hurdle in many regions of the world).

When we gave Jamie Love, the director of Knowledge Ecology International, a 2013 Pioneer Award, it was in large part for his 10 years of work negotiating and securing the passage of this agreement.

By contrast, the Beijing Treaty would create a new tool for the content industry to control cultural works, and even grant new censorship abilities, under the thin guise of supporting performers. We explain the problem in a post from last year:

This treaty would bestow new 50-year copyright-like rights upon audiovisual performers such as actors, musicians and dancers—who are generally already paid for their work when they perform. So what good is this extra layer of added monopoly rights? You won't be surprised to learn that it benefits the corporate rightsholders, who in most cases will require the performers to sign away their rights.

...

Incredibly, it gets worse. The treaty would also allow “performers” (which, remember, usually means Hollywood producers) to restrict the availability of their performances, years after they have already been made public. A current case that foreshadows this is the decision in Garcia v. Google, Inc, whereby a professional, paid film actor is suing to prevent the distribution of her performance. This essentially amounts to censorship of the film, of which her performance was only a small part. During argument in this case (which is subject to appeal), a Ninth Circuit judge expressly referred to the Beijing Treaty, suggesting that it supported the actor's case—or would do, if it were law.

Given the disparity between these two treaties, we hope nothing but timing binds them together. There were rumors last year that the ratification of the two would be introduced as a single legislative package, but it now appears that each will be considered on its own merits. The U.S. Patent and Trademark Office, charged with preparing implementation legislation, and has so far only released a package for Marrakesh [pdf].

The Marrakesh Treaty will go into force when 20 countries have ratified it. Currently, that number stands at 14.


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