Of Rights and Reservations
Access to knowledge has always been at the forefront of the international discourse on intellectual property.[1] The idea that a system designed to encourage creativity and foster innovation must allocate exclusive rights to authors and artists is as old as the Statute of Anne.[2] The same statute, however, provides that this allocation is not without limits, and mandates access to knowledge as a pre-condition to any such allocation.[3] Internationally, since the adoption of the Berne Convention for the Protection of Literary and Artistic Works (‘Berne Convention’), legal regimes have become more attentive to the limits that copyright systems must endorse in order to protect the public interest and the needs of different users.[4] As Numa Droz, the President of the first Berne Diplomatic Conference in 1884, stated:
Consideration also had to be given to the fact that limitations on absolute protection are dictated, rightly in my opinion, by the public interest. The ever-growing need for mass instruction could be met if there were no reservation of certain reproduction facilities, which at the same time should not degenerate into abuses.[5]
No copyright treaty grants absolute rights to any individual. Every treaty contains ‘reservations of certain reproduction facilities’[6] in order to avoid abuses. As a way to translate these reservations into practice and protect the interests and needs of users, sets of limitations and exceptions to the proprietary rights of authors, artists and other creative individuals in their works have been embedded in both domestic and international copyright laws. On the international level, Article 9(2) of the Berne Convention and Article 13 of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) [7] require countries to limit copyrights and confine these limitations or exceptions ‘to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder’.[8] Both articles permit definitional flexibility in the application of a particular limitation.[9] Therefore, specific international agreements, designed to deal with certain exceptions, were not necessary in order for signatory countries of the Berne or the TRIPs to adopt relevant limitations to the needs of a particular group of users.
Despite this, the international community has recently agreed on a specific treaty aiming to limit the exclusive rights of authors and artists and expand the recognition of the rights and interests of a ‘critically underserved population within the global copyright market’,[10] namely the disabled, to access materials protected by copyright. Indeed, leaving the disabled without a legal arrangement specifically tailored to their needs carries the risk of perpetuating cultural inequality and other social wrongs. As one Irish report recently proclaimed, a lack of access rights to the disabled not only ‘curtail[s] the life chances of a great many people who are unable . . . to access and enjoy the full range of cultural materials . . .[;] it reduce[s] the contribution they can make, both in general to society, and in particular to innovation . . . ’.[11] By adopting a unique agreement, the international community sought to alleviate the severe literary famine from which the disabled community suffers.[12] The agreement in question is the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (MVTor ‘theMarrakesh Treaty’).[13]
The Marrakesh Treaty, which Miha´ly Fiscor referred to as a ‘miracle’,[14] symbolizes an attempt to strike a more balanced approach between authors and users;[15] its focus is not solely on the protection of rights but also recognizes the interests of disabled people.[16] Although the MVT is not a ‘comprehensive solution’,[17] it ‘represents a genuine balance among the various stakeholders interests represented in the potentially disparate domains of copyright, human rights and disability’.[18] While some view the Marrakesh Treaty as a human rights treaty,[19] others define it as an intellectual property/copyright treaty.[20] Irrespective of this disagreement, the MVT, as this article demonstrates, is a necessary addition to contemporary copyright regimes; and the fact that it gained the support of powerful members of the international community shows the ability and willingness of that community to respond collectively to new and emerging social needs.
Non-signatories are not exempted from attending to the interests of their disabled members. In 2014, Israel became one of the first countries to amend its copyright law according to the stipulations of the Marrakesh Treaty, and the only non-signatory to do so.[21] The State of Israel, as a non-signatory, constitutes a unique case for three main reasons. First, in contrast to other Berne Convention member states, Israel’s copyright law did not provide an exception for disabled people to use accessible formats of materials protected by copyright. Secondly, even countries that had a particular exception for the disabled were not attentive to the complex meaning of the concept of disability, excluding many disabilities from the scope of the exception they have adopted. Thirdly, the Israeli way of embracing the stipulations of the Marrakesh Treaty showed why the boundaries of intellectual property should not be tied to international agreements only, and that such agreements should be used as a baseline for extending the protection of those they aim to protect.
The argument presented in this article is twofold. First, we present, discuss and evaluate the success of the international community in designing and adopting a unique humanitarian copyright treaty for disabled persons. We claim that because the definitions the Treaty favours are limited, members of the international community are expected to rethink these definitions before adopting the Treaty’s stipulations into their national laws. This expectation, we believe, is also relevant to non-signatories, given the humanitarian nature of the treaty. We then discuss the evolution and structure of the Treaty and provide examples from legal systems that have addressed the rights of the disabled before the Treaty was adopted. The article then considers the Israeli experience, outlining the development of the fair use doctrine critically analysing the amendments made to the Israeli Copyright Act 2007 in light of the Marrakesh vision. Our core objective is to show how Israel used the Treaty as a vehicle to update and modernize its own copyright exceptions to benefit the disabled in general, rather than limit its benefits to the blind, visually impaired, and otherwise print-disabled. We then review useful ideological and practical achievements of the Treaty.
Featured here is the introduction section of Lior Zemer & Aviv Gaon, “Copyright, disability and social inclusion: the Marrakesh Treaty and the role of non-signatories” (2015) 10:11 Journal of Intellectual Property Law & Practice 836. To read the full article, click here.
Lior Zemer is a Senior Lecturer, Radzyner School of Law, Interdisciplinary Centre Herzliya, Israel. Aviv Gaon is a PhD candidate at Osgoode Hall Law School, York University, Canada.
[1] See eg A Kapczynski, ‘The Access to Knowledge Mobilization and the New Politics of Intellectual Property’ (2008) 177 Yale LJ 804.
[2] The Statue of Anne 1710 is ‘An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors, or Purchasers, of such Copies, during the Times therein mentioned’. See generally H Ransom, The First Copyright Statute: An Essay on the Act for the Encouragement of Learning 1709 (University of Texas Press, 1956). Similarly, the US Constitution empowers Congress ‘to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’. US Constitution, Art I s 8 cl 8.
[3] Ransom, ibid.
[4] Under the three-step-test of Art 9(2) to the Berne Convention for the Protection of Literary and ArtisticWorks (1886), countries enacted lists of exceptions and limitation to copyright. Some, eg the UK and the EU, embraced a closed list of exceptions, while other countries, eg the USA and Israel, adopted an open-ended list. On the differences between the two approaches, see eg L Zemer, ‘The Fall of the Last Imperial Copyright Dominion’ (2011) 60 DePaul LR 1051.
[5] Quoted in M Ficsor, The Law of Copyright and the Internet: The 1996 WIPO Treaties, Their Interpretation and Implementation (OUP 2002) 258.
[6] Ibid
[7] Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) (adopted 15 Apr. 1994, entered into force 1 Jan. 1995) 1869 UNTS 299; (1994) 33 ILM 1197.
[8] Ibid.
[9] The level of flexibility is not unlimited, as the Dispute Settlement Body (DSB) of the WTO, interpreting the three-step-test, declared in the Fairness in Music Licensing Act 1998 (US) (FIMLA). See ‘United States— Section 110(5) of the US Copyright Act’ (15 June 2000), Doc No WT/DS160/R, WL 816081 (WTO) available at https://www.wto.org/english/tratop_e/dispu_e/1234db.pdf (accessed 17 September 2015).
[10] D Conway, ‘The Miracle at Marrakesh: Doing Justice for the Blind and Visually ImpairedWhile Changing the Culture of Norm Setting at WIPO’ in I Calboli and S Ragavan (eds), Diversity in Intellectual Property: Identities, Interests, and Intersections (CUP 2015) 35.
[11] Department of Jobs, Enterprise and Innovation, Modernising Copyright, The Report of the Copyright Review Committee (2013) 66. Available at https://www.djei.ie/en/Publications/Publication-files/CRC-Report.pdf (accessed 17 September 2015).
[12] Conway, above, n 10, 36–41. As F Schroeder, the first vice president, World Blind Union, stated in a panel held on 10 June 2015 regarding the ratification of the Marrakesh Treaty: ‘there is a tendency to think of this [giving blind people access to a novel, leisure reading] as a “nice thing to do”’. However, he stressed, ‘fundamentally, this is a dramatic step toward real integration of blind people into society’. See WNew, ‘WIPO Marrakesh Treaty in Force by Early 2016? Now Part of Bigger UN Process’, Intellectual Property Watch (12 June 2015). Available at http://www.ipwatch.org/2015/06/12/wipo-marrakesh-treaty-for-blind-readers-in-forcein-early-2016-now-part-of-bigger-un-process/ (accessed 17 September
2015).
[13] Marrakesh Treaty to Facilitate Access to PublishedWorks for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (signed 27 June 2013) WIPO Doc VIP/DC/8.
[14] M Fiscor, ‘Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired’ Copyright See-Saw (2013) 2. Available at http://www.copyrightseesaw.net/archive/?sw_10_item=50 (accessed 17 September 2015).
[15] See generally J Reinbothe and S von Lewinski, The WIPO Treaties on Copyright (OUP 2015) ch 18.
[16] Fiscor, above, n 14. In recent years, we are witnessing major changes in the setting of international norms including a heightened awareness of human rights. See recently DJ Gervais, International Intellectual Property: A Handbook of Contemporary Research (Edward Elgar Publishing 2015) 6.
[17] S Fitzpatrick, ‘Setting its Sights on the Marrakesh Treaty: The US Role in Alleviating the Book Famine for Persons with Print Disabilities’ (2014) 37 BC Int’l & Comp LR 139.
[18] C Geiger, Research Handbook on Human Rights and Intellectual Property (Edward Elgar Publishing 2015) 588.
[19] On the relations between human rights and the Marrakesh Treaty, see J Li and N Selvadurai, ‘Reconciling the Enforcement of Copyright with the Upholding of Human Rights: a Consideration of the Marrakesh Treaty to Facilitate Access to PublishedWorks for the Blind, Visually Impaired and Print Disabled’ (2014) 36(10) EIPR 653.
[20] Fiscor, above, n 14, 28.
[21] See Law forMakingWorks, Performances and Broadcasts Accessible for Persons with Disabilities (Law Amendments) No 5774-2014 (enacted 19 March 2014) (Israel) (‘Law forMaking Disabled AccessibleWorks’). It added s 28A to the Copyright Act 2007, and sub-paras 4A(d) and 4C1(a) to the Performers’ and Broadcasters’ Rights Law No 5744-1984 (consolidated version 1996) (Israel). The Ministry of Justice is currently examining whether the Israeli government should sign theMarrakesh Treaty.