A treaty to help end the book famine. Blind and visually impaired people able to access the books we all take for granted. It had been a surprisingly hard fought battle, but finally the Marrakesh Treaty on copyright exceptions and limitations to assist the blind and visually disabled was done.
Now, less than six months later there are worrying signs that a trade deal may undermine it all.
The Trans-Pacific Partnership is a free trade agreement being negotiated by 12 Pacific Nations: Australia, the USA, Japan, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada, Mexico, and Brunei Darussalam. Of these nations the USA, Peru and Chile have signed the Marrakesh Treaty and others, such as Australia, are widely expected to do so in the near future.
However a leaked negotiating text of the IP Chapter shows that as of August there were no provisions that affirm or protect the exceptions of the Marrakesh Treaty, and no requirement for countries to sign up to the Marrakesh Treaty. In contrast, a long list of treaties that protect rightsholder interests are mandatory. As the World Blind Union points out ‘This was the first intellectual property treaty benefitting the public interest rather than the interest of rights holders’ and it seems striking that it is the treaty not specifically referenced in the agreement.
Crucially the proposals put forward on Technological Protection Measures (TPMs) may undermine the ability of people and institutions to convert works into accessible formats. TPMs are the digital locks placed on material, meant to prevent content from copyright infringement. They can also prevent legitimate uses of works, such as text to audio conversion for the bind.
Under the US proposals in the TPP breaking a TPM is an offence, unless there is a specific exception allowing the circumvention. Exceptions proposed in the TPP include exceptions for security testing and encryption research, but only one country, Canada, has proposed an exception for the visually impaired.
Exceptions not specifically provided for in the TPP may still be applied for domestically. In Australia, our experience with the application process implemented following AUSFTA has been disastrous. Administrative delays have meant that the 2012 TPM review is yet to see the light of day. In the USA the process has been plagued by delays and high costs. Costs that under resourced charities struggle to meet.
Under the Marrakesh Treaty Article 7:
Contracting Parties shall take appropriate measures, as necessary, to ensure that when they provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures, this legal protection does not prevent beneficiary persons from enjoying the limitations and exceptions provided for in this Treaty
As Associate Professor Kimberlee Weatherall notes in her in-depth analysis,
Arguably, a TPP treaty which does not include an exception along the lines proposed by Canada is inconsistent with the Marrakesh Treaty. Requiring institutions assisting the visually impaired, and the visually impaired themselves, to apply anew for an exception every three years (as presently occurs in the US) is arguably not sufficient, not least because in the absence of an application by some person sufficiently engaged with copyright law and the process for an appropriate exception, there would be no exception and in those circumstances, the State would not be ensuring that anti- circumvention law ‘does not prevent beneficiary persons from enjoying the limitations and exceptions provided for in this Treaty.
The alleviation of the book famine rests on allowing the movement of accessible formatted works across borders. As such any provision on import and export should be expressly made subject to the Marrakesh treaty. This would include the provisions on parallel imports, where the USA is pushing for a complete ban, and any provision agreed to on international exhaustion of rights.
World Blind Union estimates that ‘currently only 5% of all published books in the developed countries and less than 1% in the developing countries are ever produced in the accessible formats’. While the Marrakesh Treaty will not solve all the problems of the visually impaired having equal access to culture it is a vital part of the solution. Any trade deal that Australia signs should ensure that implementation of the Marrakesh obligations is possible, and encouraged.