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European Publishing Lobby Forces Compromise on Marrakesh Treaty

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled was one of the most fiercely contested treaty negotiations at the World Intellectual Property Organization (WIPO). Representatives of publishers and other copyright holder groups spent years unashamedly lobbying against an instrument that would provide access to the written word to blind and other print disabled users. Despite their efforts to derail the negotiations, the treaty was finally agreed in 2013, and came into force last year.

But that wasn't the end of it. An important step towards the realization of the treaty's benefits is the implementation of the treaty by the countries where the books for adaptation into accessible formats are published. It happens that a large proportion of those books, especially those in French (which is spoken in many parts of Africa) and in Spanish (spoken throughout Latin America), originate from Europe. Therefore many blind and print disabled users have eagerly awaited Europe's implementation of the Marrakesh Treaty to unlock its many promised benefits.

Publishers as well have been keenly aware of the importance of Europe's implementation of the treaty. They have been lobbying European lawmakers to implement it in the narrowest way that the treaty allows. This week, a breakthrough was reached when lawmakers from the three European institutions (the European Parliament, the Council of the European Union, and the European Commission) reached a compromise on the text of the Directive that will implement the treaty.

The main sticking points were whether the Directive would require those who adapt works into accessible formats to pay compensation to the publishers of the original works, whether there should be a ban on creating accessible copies of works when copies are also commercially available, and whether only "authorized entities" would be permitted to create accessible-format works. On most of these issues the interests of blind and print disabled users have prevailed, with one exception: Individual European countries may require that publishers be paid compensation when adaptations of works are made by authorized entities such as charities and libraries in that country. Recital 11 of the text of the compromise Directive summarizes the effect of this:

Member States should only be allowed to provide for compensation schemes regarding the permitted uses of works and other protected subject-matter by authorised entities. In order to avoid burdens for beneficiary persons, prevent barriers to the cross-border dissemination of accessible format copies and excessive requirements on authorised entities, it is important that the possibility for Member States to provide for such compensation schemes is limited. 

Compensation schemes should therefore not require payments by beneficiary persons. They should only apply to uses by authorised entities established in the territory of the Member State providing for such a scheme and they should not require payments by authorised entities established in other Member States or third countries that are parties to the Marrakesh Treaty. ... Account should also be taken of the particular circumstances of each case, resulting from the making of a particular accessible format copy. Where the harm to a rightholder would be minimal, no obligation for payment of compensation may arise.

It would have been better if the Directive had simply ruled out the need for payment of compensation for the adaptation of works for blind and print disabled users. In almost all cases, adapting copyright works for the blind is undertaken from a motive of compassion, not profit. Indeed, if there were profit in it, blind users would not be suffering the "book famine" that results in them having access to only 1% of published books in accessible formats in poor countries, and only 7% in rich countries.

Nevertheless, the implementing Directive will not impose payment conditions on foreign entities or those from other EU member states, which will likely mean that most of the adaptation of works for blind and print disabled users will be conducted in countries that do not impose a requirement of compensation. Even works that are meant for users within such a country will likely be imported from overseas. The right to import adapted works from other countries is a key feature of the Marrakesh Treaty, and a feature that the European Directive will preserve.

Overall then, despite being somewhat tarnished by the self-interested demands of publishers, the overdue implementation of the Marrakesh Treaty in Europe is to be welcomed. Its success affirms the consensus of WIPO member states that international law on copyright shouldn't be in the service of copyright holders alone, but needs to reflect a balance of interests of creators and users, including disadvantaged users such as those who are blind, vision impaired, and print disabled.

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