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Analysis of WIPO Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired, or otherwise print disabled

The WIPO Diplomatic Conference concluded successfully on 28 June 2013 with the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled (available here).
This Memorandum aims at providing a first legal analysis from a rightholder perspective, and concludes as follows:

  • The Treaty is an exceptional treaty, providing access to specifically defined beneficiaries.
  • The Treaty is an access treaty rather than an exceptions and limitations Treaty.
  • The Treaty leaves it to the individual country to decide whether to make the exception or limitation subject to remuneration.
  • The Treaty reconfirms the role of Authorised Entities as a means to facilitate access to works in accessible formats for persons who are blind, visually impaired, or otherwise print disabled. This means that the WIPO-facilitated TIGAR and the EU-facilitated ETIN initiatives to create a network of authorised entities for the cross-border exchange of accessible format copies of works maintain their relevance.
  • The Treaty includes many references to the “three-step test” and to obligations in other international treaties, providing assurance to rightholders that it will be applied, de facto, to all files that are exchanged internationally.
  • Even though there is no mandatory reference to “commercial availability” in the Treaty, rightholders should be able to argue that the “commercial availability” requirement needs to be observed, based on the second limb of the “three-step test” (“normal exploitation”). The Treaty certainly has the flexibility to allow countries at different speeds or stages of development to take into account the level of commercially available offerings.
  • Although there is a reference to “fair practices, dealings or uses” – in the specific context of exceptions and limitations in favour of blind, visually impaired, or otherwise print disabled persons, subject to international obligations – we do not interpret this as an explicit reference to the concepts of “fair use” or “fair dealing”.

For IFRRO members, the Treaty should not per se bring about changes. Countries in which RROs administer statutory licences in respect of accessible format copies are allowed to maintain such arrangements. We also continue to encourage RROs to respond positively to requests from authors and publishers to facilitate the making and cross-border exchange of accessible format copies, including participating in the TIGAR and ETIN projects. We would like to remind you that the IFRRO website has a specific page dedicated to these issues, which also includes tools to facilitate RRO engagement (here).

The full Memorandum is here