Hopefully not the case. Image from here
As recently announced, we have opened our 4th annual SpicyIP Fellowship series and are now accepting applications. [Click here to see how to apply]. Our first application this year comes from Rahul Bajaj, a very enterprising 4th year student from the University of Nagpur, where he looks at the current status of the Marrakesh Treaty. The Marrakesh Treaty adopted back in July, 2013 by 64 countries, and at the time hailed as a significant step towards increasing accessibility for the print-disabled, has unfortunately seen very little progress since its adoption. In this post, Rahul ponders over the reasons that the much acclaimed Marrakesh Treaty hasn’t quite had the effect that many of its proponents had hoped it would have. This is his first post in the 2016-17 Fellowship application series. Rahul has earlier written for us on Traditional Knowledge here.
Title: Translating the Miracle of Marrakesh into Concrete Action – the Journey So Far
Author: Rahul Bajaj
That approximately 90% of all published material remains inaccessible to the world’s 300 million print-disabled people due to the absence of robust exceptions in national copyright laws, lack of uniformity in the laws of different jurisdictions and the inability of governments to recognize the importance of equipping the disabled with the skills to compete effectively in the global knowledge economy, is a platitude. Against this discouraging backdrop, it was hoped that the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, (“the Treaty”) adopted by the Community of States on 28th June, 2013, would pave the way for the expansion of fair use exceptions in national copyright laws. Less than 60 of these countries currently provide such exceptions, and facilitate cross-border transmission of accessible books, especially to developing countries in which only 1% of printed material is available in accessible formats. Indeed, the Treaty, which is the first international instrument on harmonizing exceptions and limitations in copyright law, was widely acclaimed for being the clearest manifestation of an alternative narrative to the copyright paralysis that besets most developed countries. While it is heartening to note that India was the first country to ratify the Treaty, only 13 countries have ratified it so far, with Brazil, Argentina and Singapore being the only major countries to have done so. Pertinently, the Treaty will come into force only three months after 20 nations ratify it.
While the reasons for non-ratification vary – from the concerns of nations like Italy and Germany about the EU increasingly arrogating to itself the power to negotiate treaties on their behalf, to countries like Canada facing challenges flowing from the need to amend their copyright law in accordance with the Treaty – there are three key reasons that explain the unwillingness and/or inability of countries to ratify the Treaty thus far:
- First, it is imperative to remember that the final text of the Treaty was the result of many hard-fought compromises between those advocating robust and capaciously-worded exceptions, and those fearing that the Treaty would result in a large number of commercially profitable books entering ordinary channels of business of publishers and set a wrong precedent for the creation of exceptions that undercut the rights of authors and publishers. Therefore, even though many countries agreed to sign the Treaty under sustained international pressure, they lack the political will to ratify it and to bring their copyright laws in line with its mandate.
- Second, although organizations working for the blind have campaigned vociferously for expeditious adoption of the Treaty, their efforts have been largely uncoordinated and have lacked the sense of purpose, vision and tenacity that helped them expedite the signing of the Treaty. Sans a sustained and robust public campaign by civil society and disability activists, the Treaty is unlikely to see the light of day anytime soon.
- Third, at a time when commentators are hailing the effective integration of the needs of the disabled in the UN Sustainable Development Goals, the failure of thinkers and disability groups to recognize the enormous potential of the Treaty to address widespread inequities, bridge informational gaps and promote greater inclusion of the disabled has disincentivized any meaningful efforts to ratify the Treaty. In other words, until policymakers are able to situate the importance of the Treaty within the broader context of human rights law, the Treaty will not get the attention that it merits and warrants.
As this excellent open letter by the Centre for Internet and Society to Prime Minister Modi unequivocally states, it is necessary for India, which has been at the vanguard of creating robust exceptions for the print-impaired, to urge other countries to ratify the Treaty at the earliest. This is essential not only because India is home to the world’s largest population of blind people, but also because it is critical for the Government to focus on building networks of cooperation with other countries in order to translate the rhetoric of its recently-launched Accessible India Campaign into reality. Further, as Justin Hughes, the chief U.S. negotiator in the Marrakesh Treaty consultations has rightly noted, the rapid emergence of new technological avenues for obtaining more accessible content has the potential to obviate the need for the Treaty within the next decade. Therefore, the moment has never been more ripe for governments and disability groups to redouble their efforts to tap into the potential latent in the Treaty for restructuring their copyright laws in positive ways in order to ensure that the commitment to make the written word accessible to the world’s largest minority – the disabled – doesn’t merely remain confined to words.