By Diego Naranjo

In April 2015, the European Union “celebrates” one year since the signature of the Marrakesh Treaty. This Treaty seeks to facilitate access to cultural content to for people who are blind, visually impaired or print disabled. This Treaty makes mandatory for contracting parties to provide exceptions or limitations in their national legislation to the right of reproduction and the right of distribution to “facilitate the availability of works in accessible format copies” on a non-profit basis and supplied in accessible formats exclusively to be used by those visually impaired, without requiring the authorization from the rightsholder. The Treaty also allows to those copies to be shared among the Parties to the Treaty. In addition to these mandatory exceptions, the Marrakesh Treaty adds as well an additional optional exception or limitation (“may also provide”) to the right of public performance.

Sadly, one year after the signature of the Treaty, there is no sign the European Union moving forward with ratification of the instrument, which is necessary to bring it into law.

Given the fact that in Europe only five percent of published books are available in an accessible format for visually impaired persons (in developing countries this rate is as low as one percent), the reform is not only common sense, but it calls for need of urgent implementation. Adding on top of this that the Treaty was watered down when the audio-visual materials were taken out from it, after intense lobbying by industry representatives such as the Motion Picture Association of America (MPAA), and that some of the provisions are not even mandatory, the question is why it is taking so long for the Treaty to enter into force.

Michel Barnier, then Vice-President of the European Commission, said that the EU could “help to improve access to books with equal conditions for all and contribute to the fight against the book famine”, and that the the Commission’s proposal was “a signal that Europe (was) ready to support the rapid entry into force of this important Treaty”. Finally, he called the Council and the European Parliament (EP) to “authorise the ratification as soon as possible.” 21 months after it was adopted, and almost one year after the EU signed it, the ratification is still pending. And there is no clear sign of this changing in the short term.

Even worse, the scenario resembles pretty much to what in lawyers’ jargon is called a “dilatory strategy”. On this regard David Hammerstein, member of the Trans-Atlantic Consumer Dialogue (TACD), expressed his dissatisfaction with the “lack of consensus building, technical commitment and political will on the part of both the Commission and EU member states”.

Despite the failure to respect its own commitments, there is hope in some ongoing initiatives in the Parliament that are dealing with the Marrakesh Treaty. At this moment for example the Draft Report on the implementation of the so-called InfoSoc Directive presents a positive approach. Different amendments to the Draft Opinion prepared by the Culture and Education Committee of the European Parliament include a mention on the necessity of having an exception in line with the treaty. However, it is clearly crucial that this does not become a call for the exception to be included in a future revision of the Directive, which may (based on the length of time it took to pass the current legislation) not enter into force until about the beginning of 2021 – or seven and a half years since the Treaty was finalised.

The Culture and Education Committee now needs to decide if it supports rapid ratification, or a huge delay.

Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled adopted by the Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities in Marrakesh (27.06.2013)
http://www.wipo.int/treaties/en/text.jsp?file_id=301016

European Commission proposes ratification of Marrakesh Treaty to facilitate access to books for visually impaired persons (21.10.2014)
http://europa.eu/rapid/press-release_IP-14-1185_en.htm

EDRi comments he Amendments presented at the CULT Committee on the Draft Report on the implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (see amendments 65, 88 and 89)
https://edri.org/files/Reda/Reda_CULT_am_Adinolfi-EDRi-FINAL.pdf

EDRi comments on the amendments tabled to AFCO Draft Opinion on TTIP, European Digital Rights
https://edri.org/files/TTIP/TTIP-Ams_AFCO_EDRi.pdf

Document from the EU Council on guidances on the Proposal for a Council Decision on the conclusion, on behalf of the European Union, of the Marrakesh Treaty 20.03.2015
http://www.statewatch.org/news/2015/apr/eu-council-marrakesh-treaty-guidance-7321-15.pdf

(Contribution by Diego Naranjo, EDRi)

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