Beyond the Marrakesh VIP Treaty: Typology of copyright access‐enabling provisions for persons with disabilities

• Published date: 01 July 2020
• Author: Desmond O. Oriakhogba,Caroline B. Ncube,Blake E. Reid
• Date: 01 July 2020
• DOI: http://doi.org/10.1111/jwip.12144

J World Intellect Prop. 2020;23:149–165. wileyonlinelibrary.com/journal/jwip

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149

DOI: 10.1111/jwip.12144

ORIGINAL ARTICLE

Beyond the Marrakesh VIP Treaty: Typology of

copyright access‐enabling provisions for persons

with disabilities

Caroline B. Ncube

1

|Blake E. Reid

2

|Desmond O. Oriakhogba

3

1

Department of Commercial Law, Faculty of

Law, University of Cape Town, Cape Town,

South Africa

2

Samuelson‐Glushko Technology Law & Policy

Clinic, University of Colorado Law School,

Boulder, Colorado

3

Faculty of Law, University of Cape Town, Cape

Town, South Africa

Correspondence

Caroline B. Ncube, Department of Commercial

Law, Faculty of Law, University of Cape Town,

Pvt Bag X3, Rondebosch, Cape Town 7700,

South Africa.

Email: caroline.ncube@uct.ac.za

Funding information

World Intellectual Property Organization;

National Research Foundation,

Grant/Award Number: 115716

Abstract

This paper builds upon the evidence drawn from a scoping

study on access to copyright works by persons with dis-

abilities. It identifies and discusses specific access‐enabling

technologies for persons with aural, cognitive, physical, and

visual disabilities and how they are affected by the exercise

of exclusive rights. It shows how, and the extent to which

states' ratification of the Marrakesh Treaty to Facilitate

Access to Published Works for Persons Who Are Blind, Vi-

sually Impaired, or Otherwise Print Disabled (Marrakesh

Treaty) has enabled the making of accessible format of

copyright works for persons with disabilities. To this end, the

paper examines patterns and trends of accessible format‐

enabling provisions in the copyright laws of World In-

tellectual Property Organization (WIPO) member states.

KEYWORDS

access, copyright, disabilities, key topics, limitations and

exceptions

1|INTRODUCTION

One of the most‐oft cited statistical accounts of the global prevalence of disability is the World Health Organization

(WHO) and World Bank's 2011 World Report on Disability which indicated that “one billion people in the world live

with some form of disability, of whom nearly 200 million experience considerable difficulties in functioning”

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This is an open access article under the terms of the Creative Commons Attribution‐NonCommercial License, which permits use,

distribution and reproduction in any medium, provided the original work is properly cited and is not used for commercial purposes.

© 2020 The Authors. The Journal of World Intellectual Property published by John Wiley & Sons Ltd

(WHO & World Bank, 2011, p. xi). More recent statistical surveys have confirmed this prevalence (Groce, 2018;

WHO, 2018). Based on these numbers, the global prevalence of disability currently stands at approximately 15% of the

global population. WHO and the World Bank report that the majority of persons with disabilities reside in the de-

veloping world (WHO & World Bank, 2011; World Bank, 2018). This constituency faces several challenges and is among

the “most marginalized groups in the world”(WHO, 2018b). This paper considers such disadvantage within the context

of access to, and use of, copyright‐protected works. The crux of the matter is that some modification or remediation of

copyright‐protected works would be required to render the work accessible to persons with disabilities. In the absence

of an applicable limitation and exception (L&E), such modification would have to be in terms of a license granted by the

copyright holder. While licensing is a viable option, it cannot be the sole solution, particularly where binding human

rights norms require states to ensure equitable access to copyright‐protected works. Specifically, the United Nations

Convention on the Rights of Persons with Disabilities (CRPD; United Nations, 2007) requires state parties to ensure, in

line with international law, that their intellectual property (IP) legislation does not “constitute unreasonable or dis-

criminatory barrier to access by persons with disabilities”(CRPD, Article 30(3)). A consideration of the appropriate L&Es

for persons with disabilities, therefore, lies at the intersection of human rights and IP law and requires the advancement

of human rights using copyright's legal and policy mechanisms (Helfer, Land, Okediji, & Reichman, 2017,p.1).

The Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization

(WIPO) has had disability‐related L&E on its agenda since 2003, with Chile tabling the first proposal in 2005 (SCCR/13/5)

and a subsequent proposal by Brazil, Chile, Nicaragua, and Uruguay for the formal adoption of a work plan in 2008

(WIPO–SCCR, 2008a,2009, SCCR/16/3). The latter proposal moved for the adoption of a work plan that included

“achieving a consensus on minimum mandatory exceptions and limitations particularly with regard to educational

activities, people with disabilities, libraries and archives, as well as exceptions that foster technological innovation”

(WIPO–SCCR, 2008b, SCCR/16/2). Thereafter, the SCCR resolved to start “dealing, without delay and with appropriate

deliberation, with those needs of the blind, visua lly impaired, and other reading‐disabled persons, including discussions at

the national and international level on possible ways and means facilitating and enhancing access to protected works.

This should include analysis of L&Es”(WIPO–SCCR, 2008c, SCCR/17/WWW [112533]). This study culminated in the

adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired,

or Otherwise Print Disabled (Marrakesh Treaty) in WIPO (2013). Further background on the Marrakesh Treaty, an

overview of its key legal and policy innovations, and its relationship to international human rightsare given in Section 4.

Thistreaty,asisevidentfromitsname,isintendedtobenefit blind persons and those with visual disabilities through its

provision for copyright L&E which facilitate their access to print works. Early versions of the negotiating text included

provisions that would have catered for other works and disabilities. Specifically, Article 15 of the Proposal by Brazil,

Ecuador and Paraguay (SCCR/18/5) read:

(a) For the purposes of this treaty, a “visually impaired”person is:

a person who is blind; or

a person who has a visual impairment which cannot be improved by the use of corrective lenses to give

visual function substantially equivalent to that of a person who has no visual impairment and so is unable

to access any copyright work to substantially the same degree as a person without a disability.

(b) Contracting parties shall extend the provisions of this treaty to persons with any other disability who,

due to that disability, need an accessible format of a type that could be made under Article 4 to access a

copyright work to substantially the same degree as a person without a disability.

Article 15(b) was omitted from the final text and, consequently, a binding international normative framework

does not exist for persons with other disabilities and for persons with visual disabilities in relation to other types of

work, beyond text or print works.

The SCCR commenced deliberations for an international normative standard L&Es for persons with disabilities

not covered by the Marrakesh Treaty and in 2013 prepared a Provisional Working Document Towards An Appropriate

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