Negotiators from around the world gathered in Marrekesh, Morocco late last month for a diplomatic conference aimed at concluding a new United Nations treaty to improve access to copyrighted works for people who are blind or have other perceptual disabilities. Despite years of discussions, there was ample reason for pessimism.
My weekly technology law column (Toronto Star version, homepage version) notes the treaty talks had become bogged down in the months leading up to the conference, with large lobby groups such as the Motion Picture Association working feverishly behind the scenes to undermine it through changes to rules on digital locks and fair use.
As the deadline approached however, the majority of the world lined up behind user rights for the blind. With Canada playing an important facilitative role, the negotiators were ultimately able to craft compromise language that resulted in a new landmark treaty. More than 50 countries immediately signed on, suggesting that the treaty is well on its way to establishing new rights for the blind (20 countries must ratify it before the treaty formally takes effect).
Beyond the substantive benefits, the treaty is rightly characterized as the “miracle in Marrakesh” as it is the first international copyright treaty to focus on user interests. Its origins start with the emergence of the World Intellectual Property Organization’s Development Agenda, an effort by developing countries and civil society groups to bring some balance to global intellectual property policy.
Established in 2004, it pushed WIPO to consider both improved protections of intellectual property in tandem with enhanced user rights. The treaty for the blind and visually impaired was one of the first major development agenda initiatives, despite facing significant opposition from publishers and some governments, who argued that a treaty was unnecessary.
With the first user rights treaty now in hand, WIPO may now turn its attention to other groups who may benefit from similar rights. In fact, there are proposals in development focused on libraries and education, two sectors where copyright exceptions are well established on public policy grounds, but which could be strengthened through minimum international law requirements.
The negotiating process behind the treaty for the blind is also instructive as it was far more open and transparent than comparable negotiations. The Trans Pacific Partnership Agreement and the Canada – European Union Trade Agreement both feature sizable intellectual property chapters, yet unlike the secrecy associated with those talks, the WIPO treaty negotiations featured regular public releases of draft texts and opportunities for interventions from groups on all sides of the issue, including publishers and groups representing the blind.
While the final language was crafted behind closed doors, the successful conclusion of the treaty demonstrated that greater transparency can help international negotiations by fostering consensus on difficult issues and creating feedback mechanisms that result in broader support for the final agreement.
From a Canadian perspective, the next step will be for the government to sign the treaty and address any potential domestic legal reforms necessary for ratification. Canadian law already includes several copyright provisions designed to facilitate access for the blind and visually impaired, so major changes to the law are unlikely.
Instead, the government should consider including any necessary reforms within Bill C-56, its copyright, counterfeiting, and trademark bill that is still at an early stage in the parliamentary process. Moving quickly would send a strong signal of support for the blind and demonstrate Canadian leadership on the world’s first copyright treaty focused on user rights.