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Not Everyone Is Riding the Marrakesh Express
by
Posted On November 1, 2016
Surely, few would disagree that the blind and visually impaired deserve all the help they can get in accessing reading materials—and yet it appears some pressure groups have tried to stymie provisions in the 2013 Marrakesh Treaty in order to protect their interests. The treaty sets out to make it legal for published material—especially online material—to be reformatted so it is accessible to those with sight disabilities.

Julia Reda, a Member of the European Parliament, is an advocate for the treaty. She says a “surprising” range of organizations are lobbying against it. “The pharmaceuticals industry argued that this treaty would set an unwanted precedent: If one treaty is adopted to protect the rights of marginalised groups, other such treaties could follow that would call into question their patents on life-saving medicines.” She also points out that the Intellectual Property Owners Association argues that the treaty “would constitute an ‘unbalanced privilege’ to people with disabilities if rightsholders were not strengthened at the same time.” (For more information, see the association’s letter to the U.S. Patent and Trademark Office on page 24 of Knowledge Ecology International’s collection of documents.)

According to a September 2016 statement by the International Federation of Library Associations and Institutions (IFLA), rightsholder organizations “in some countries are advocating for restrictive provisions that introduce measures such as record-keeping for accessible copies made and shared, [the imposition of] royalty payments, and [the requirement for] a process to check the marketplace for accessible copies in an environment where no copies are available to buy or license.”

The Marrakesh Treaty provides that authorized entities—which may well include libraries—in countries that have ratified it may make accessible copies of publications for visually impaired readers. But, according to IFLA, “Imposing record-keeping requirements would mire authorised entities in processes that will reduce the time available to serve their users and contribute further to the dearth of accessible works. In addition, record-keeping poses a serious privacy threat, risking the sharing of personal information about disability and reading choices with commercial entities and others.”

The World Blind Union Works Toward Ratification

The World Blind Union (WBU) shares some of these concerns and is calling for wider ratification beyond the current 25 signatory countries, “as a step towards fulfilling their obligations under the Convention of the Rights of Persons with Disabilities and other human rights instruments,” says Penny Hartin, WBU’s CEO.

“We further urge all states to expand the availability of books and other cultural materials in accessible formats, including across borders; to avoid imposing financial or other burdens on beneficiaries; and to consult with print disabled individuals and their representative organizations regarding the implementation and monitoring of the Marrakesh Treaty,” she says.

The European Union Makes a Statement

The actions of the European Union (EU) in ratifying the treaty should set the tone for its scope and reach. In September 2016, more than 3 years after the treaty was adopted, the EU’s advocate general (the top legal cheese) ruled that ratification was the exclusive competence of the EU, rather than of the member states.

This means that ratification should begin its tortuous progress—if there are no more significant legal hurdles—through the EU’s legislative process and that national governments should not be able to hinder ratification. Or, as the European Blind Union (EBU) states in a Sept. 29, 2016, press release, “This effectively removes the shameful ‘competence excuse’ used by 7 EU member states to block EU ratification over the past two years.”

The EBU continues, “We demand … swift, positive legislation that is a ‘one to one’ transcription of the Treaty text with no added barriers nor new administrative burdens. It is time for the European Parliament to stand up and be counted.”

We’ll see about that, as there are bound to be twists and turns in the EU’s ratification process. According to Wolfgang Angermann, the EBU’s president, some issues—such as licensing arrangements and record keeping—“mainly will have to be dealt with on a national level, when the implementation of the EU legislative measures [emanating from] the Marrakesh treaty, will have to be discussed. So far, the EU does not provide special regulations for licensing, or, for example, for changing the treaty’s definition of beneficiary persons.”

Angermann adds that “among the publishers there is a strong negative attitude towards people with dyslexia being eligible [for] the benefits of the Marrakesh treaty. The respective stakeholders differ from country to country.”

To be fair, though, in a proposal on ratifying the treaty, the European Commission says that in order for the EU to meet its obligations as a signatory to the United Nations Convention on the Rights of Persons with Disabilities, “it is justified to restrict the property rights of rightholders in light with the [EU’s] obligations” under the Charter of Fundamental Rights of the European Union. This charter—in intention if not in reality—guarantees people with disabilities the right to participate in cultural, economic, and social life on an equal basis with others. But fine words butter no parsnips.

This all sounds laudable, but the reality of implementation is different, according to Reda. She claims that only 5% of all books published in the EU are accessible to visually impaired readers. She says that “among everything I’ve experienced in politics so far, the squabble over the Marrakesh treaty stands out as a particular letdown. A few European governments—including Germany and the UK—are currently playing a leading role in denying people with visual impairments urgently needed access to knowledge and culture for no defensible reason.”

And, as she says, given that European languages such as English, Spanish, and French are spoken in many parts of the globe, EU ratification of the Marrakesh Treaty should help visually impaired people in developing countries beyond the union’s borders get reading materials in accessible formats. 


John Charlton writes about technology, law, and education for several publications.



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