Copyright Exemptions to Facilitate Access to Published Works for the Print Disabled – The Gap Between National Laws and the Standards Required by the Marrakesh Treaty

Abstract

The issue of whether and to what extent the law of copyright should provide exemptions in order to facilitate access to published works by the blind, visually impaired and print disabled is complex and emotive, integrating a variety of areas of law, most notably intellectual property and human rights law. The issue has recently been debated on the international stage in the drawing up of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (WIPO Doc VIP/DC/8, hereinafter: the Marrakesh Treaty). The Treaty aims to facilitate the availability of published works in accessible format copies by requiring Member States to provide a limitation or exception in their national copyright laws permitting authorized entities to reproduce a published work in an accessible format, and distribute it without the authorization of the copyright holder to persons who are blind, visually impaired or experiencing other print disabilities. However, the journey to passing the Marrakesh Treaty was by no means linear and involved the expression of often divergent views by the member countries in the international context. This divergence of opinion is reflected in the vastly varying levels of support for related copyright exceptions and limitations provided in the laws of nations around the world. The Marrakesh Treaty was adopted at the World Intellectual Property Organization (WIPO) diplomatic conference on 27 June 2013. It is, however, pertinent to note that this treaty will not enter into force until it has received 20 ratifications (Art. 18.). As attention now moves to ratification and implementation of the treaty by Member States, it will be useful to examine the nature of the gap that presently exists between national laws and the standards required by the treaty, and to thereby evaluate whether and to what extent the provisions of the treaty are likely to be implemented in the domestic laws of the Member States. To this end, this article begins by providing a global overview of the copyright exemptions presently in operation in various nations. Thereafter, some specific issues concerning the treaties reflected in the drafts proposed by different countries will be discussed. These issues will be the subject of the first two parts of the discussion. The third part outlines the ambit of the Marrakesh Treaty and points out issues needing further clarification. The conclusion analyzes the prospects of final ratification by reference to the willingness of Member States to adapt their national copyright laws to the Marrakesh Treaty – a willingness that may be indicated by their current legal practices and their contributions to the treaty.