Blindness, books and copyright law: how the Marrakesh treaty is giving the gift of literature

  • Law
  • September 2, 2013
  • Anton Blijlevens and Jillian Lim
Blindness, books and copyright law: how the Marrakesh treaty is giving the gift of literature

The blind and visually impaired have long suffered what has been dubbed a “book famine”. Take a look at the statistics, and you will see why.

According to the World Health Organisation, there are over 314 million blind and visually impaired people in the world today. One million books are published annually, but only five percent are ever produced in accessible formats. It is worse in developing countries where 90 percent of the world’s visually-impaired people live; only one percent of books are available in accessible formats.

There are two main reasons for this book famine. Firstly, many publishers have chosen not to produce accessible books, for basic economic reasons. A 314-million-person market is, after all, insubstantial in the large scheme of things. An easy workaround would be to allow certain organisations, such as libraries, to reproduce the material in accessible format, and to provide the material exclusively to the blind community. However, this brings us to the second reason for the book famine: copyright law.

Laws in over two-thirds of the world’s countries do not allow the reproduction of any copyright work without the owner’s consent, not even reproduction of the work in accessible formats. This is typically aimed at preventing the translation of books from its original language into other languages. But it also impacts translation of text into Braille or audio books. For example, according to a case study by the World Intellectual Property Organisation (WIPO), the Library for Blind People of Santiago in Chile is a non-profit organisation working to convert written material into audio tapes. Chilean copyright law, however, does not support their activity. The library circumvents this by seeking permission directly from rights owners, but publishers are often difficult to reach, untraceable or uncooperative, and many books never make it into accessible format.

The Marrakesh Treaty

This situation is set to change in the future, thanks to the 'Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or otherwise Print Disabled' (Marrakesh Treaty).

The treaty was finalised on 27 June 2013 after five years of negotiations and it will come into force after 20 of WIPO's member countries have ratified it.

The treaty requires contracting countries to add copyright exceptions to their national laws, which allow:

  • Non-profit organisations to reproduce artistic and literary works in accessible format, and distribute them to the blind and print-impaired, without permission from the copyright owner
  • Exchange of the accessible works between contracting states.

The first provision makes copyright infringement exceptions consistent across contracting countries, including countries like New Zealand, where copyright infringement exceptions do exist, albeit to varying degrees. 

The second provision, the facilitation of cross-border exchange, is undoubtedly the highlight of the treaty. It will largely benefit visually-impaired people living in developing countries, who have been unable to access the majority of printed material which originates from developed countries. Additionally, this provision will reduce duplication of the work involved in converting material into accessible format, especially between countries which share the same language.

Importantly, this cross-border exchange provision is not restricted to conditions such as commercial availability. Earlier versions of the treaty required that non-profit organisations check if the material is commercially available locally before they reproduce the accessible versions. This would have severely limited the benefits of the treaty and complicated its implementation. Considering that normal libraries loan books out regardless of their commercial availability, such a restriction would have further reinforced existing prejudice against the visually-impaired community.

Limitations and future challenges

The treaty does not cover audio-visual (AV) material. This was removed from the treaty recently after lobbying by stakeholders, such as the Motion Picture Association of America (MPAA). This is unfortunate, because it is labour-intensive to make AV material accessible by providing audio descriptions of the material. Accessibility of AV material worldwide would have benefited greatly from cross-border exchange provisions.

Additionally, while the initial version of the treaty included exemptions for the deaf and hearing-impaired, the final version is specifically targeted at only the visually-impaired.

Another limitation, which will become more apparent when the treaty is implemented, is that several of the treaty’s conditions are non-obligatory. For example, exemptions for translations and public performances of copyright works have not been explicitly included in the treaty, but have been left to contracting countries to incorporate individually.

While some parties have voiced concerns that the treaty could set a precedent for future treaties on other copyright infringement exceptions, all major stakeholders appear to be satisfied that the treaty is fair and workable. The next step is to ensure the treaty is ratified and implemented as intended.

Authorised entities (non-profit organisations authorised by the government) in each country will be expected to regulate distribution of the accessible works exclusively to visually-impaired, and ensure the exceptions are not exploited.

How will the treaty affect New Zealand?

New Zealand’s Copyright Act already contains copyright exceptions for persons with print disabilities, provided that the accessible material is not readily available commercially. The Royal New Zealand Foundation of the Blind (RNZFB) has been producing accessible material for its members since 1966. A major obstacle for the foundation has been the importation and sharing of accessible material. Even with permission from the rights owners, international copyright restrictions meant unnecessary duplication of work. The cross-border provisions in the treaty will make it easier for New Zealand to obtain, as well as share, accessible material.

Currently, New Zealand law also provides copyright exemptions for reproduction of subtitled works for the deaf and hearing-impaired.

Existing assistive technology and accessible standards, such as DAISY for audiobooks and WCAG for web content, are already capable of making a lot more material accessible to the visually-impaired. The Marrakesh Treaty has finally provided the clear legal provisions necessary for relief from the book famine.

  • Anton Blijlevens is a partner and Jillian Lim is a patent executive at AJ Park. 

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