The Origin and Interpretation of the Marrakesh Treaty

November 3, 2021

I.The Origin of the Marrakesh Treaty

Each year, of the millions of books published worldwide, only 1–7 percent are made available to the 314 million persons in the world who are blind and visually impaired, 90 percent of whom live in low-income settings in developing countries.

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (“the Marrakesh Treaty”) was adopted by the Member States of the World Intellectual Property Organization (WIPO) on June 27, 2013, to address this problem, commonly referred to as the global book famine.

Conceived in line with the human rights principles outlined in the Universal Declaration of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), the Marrakesh Treaty is the first copyright treaty to include a clear human rights perspective. The Marrakesh Treaty demonstrates that copyright systems are an important part of the solution to the challenge of improving access to books and other printed works for persons with print disabilities.

The Marrakesh Treaty entered into force on September 30, 2016, now covering more than 107 countries. The Standing Committee of the National People's Congress of China adopted the decision to ratify the Marrakesh Treaty on October 23, 2021.

II. Main Elements of the Marrakesh Treaty

1. Definitions of the Marrakesh Treaty

A “beneficiary” is defined as someone affected by one or more in a range of disabilities that interfere with the effective reading of printed material. This broad definition includes persons who are visually impaired as well those with a physical disability that prevents them from holding and manipulating a book.

The definitions of “works” and “accessible format copy” are closely related to the concept of beneficiaries in the sense that “works” refers to those materials that the “beneficiary” would not be able to read or access, except in an alternative or accessible format. The definition of “works” within the Treaty is limited to materials in the form of text, notation and/or related illustration, and an agreed statement by the Contracting Parties clarifies that this also includes audiobooks.

The definition of “accessible format copy” is fairly broad and covers any format that permits a person with a visual impairment or other print disability to have access to the content as feasibly and comfortably as a person without such a disability, including digital formats.

The Marrakesh Treaty recognizes that governmental and non-governmental organizations play an important role in providing persons with print disabilities with access to alternative format materials. For that reason the Treaty allows these organizations to perform certain acts, otherwise prohibited under copyright law, in order to assist the “beneficiaries”.

In the definition, the Marrakesh Treaty states that “authorized entities” need to observe some conditions regarding the use of the work, for example ensuring that only those individuals considered as “beneficiaries” according to the Treaty will enjoy access to accessible format copies. The Marrakesh Treaty does not require an organization to fulfill any formalities or undertake specific procedures to obtain recognition as an “authorized entity”. However, the Treaty does not forbid such measures and thus gives Member States the leeway to create such procedures at the national level.

2. Main obligations when implementing the Treaty

The Marrakesh Treaty requires that Contracting Parties fulfill two main obligations when implementing the Treaty at the national level, although they may do so according to their own legal systems. The first is to provide for a limitation or an exception to copyright in order to allow “beneficiaries” and “authorized entities” to undertake any changes needed to make a copy of a work in an accessible format for persons with a print disability. The second is to allow the exchange across borders of those accessible copies produced according to the limitations and exceptions provided in the Marrakesh Treaty, or in accordance with the operation of law.

III. Benefits of the Marrakesh Treaty

The Marrakesh Treaty has one shared goal and benefit: To increase access to books, magazines and other printed materials for the world’s population of persons with print disabilities.

1.Improve awareness of the challenges faced by the print-disabled community and persons with disabilities

The Marrakesh Treaty is an instrument that fosters discussion and raises awareness about the need for policies that benefit persons with disabilities. For example, the implementation of the Marrakesh Treaty could provide access to works for persons with other types of disabilities, or trigger actions to implement additional provisions of the UNCRPD, in favor of the wider community of persons with disabilities.

2. Facilitate access to education

There is no doubt that education plays a crucial role in society and that it has an immeasurable impact on an individual’s life. Access to educational materials in accessible formats is essential to enable persons with print disabilities to pursue educational opportunities. At the same time, educational institutions are only able to offer their services to individuals with print disabilities if they too have access to accessible format materials. The Marrakesh Treaty will improve the availability of accessible format educational materials so that persons with print disabilities can enjoy equal access to education.

3. Enhance social integration and cultural participation

Having equal access to common sources of knowledge and information is crucial not only for learning, but also for social inclusion and cultural participation. By improving access to both educational and leisure materials, the Marrakesh Treaty will facilitate greater inclusiveness and participation by persons with print disabilities in the cultural and social life of their communities.

4. Alleviate poverty and increase contributions to the national economy

Individual professional development is highly dependent on educational attainment. By providing access to learning materials in accessible formats, the implementation of the Marrakesh Treaty can be a powerful tool for poverty alleviation, providing persons with print disabilities with opportunities for professional growth, allowing them to contribute to their local economies and become economically self-sufficient. In addition, by increasing the focus on accessible format works and improving the certainty about the system for their production and distribution under national copyright laws, the Marrakesh Treaty will strengthen local publishing industries and increase investment in copyright industries, which are key drivers for economic growth and development.