3 July 2013
On 22 June a treaty for the blind was heading for disaster as negotiators stalled and refused to budge on hardline positions. Three days later a negotiator stepped out of a boardroom in the Atlas Medina hotel in Marrakesh and announced to a crowd of tense and exhausted observers, “We have a text!” The tears and dancing that followed is hardly what you’d associate with the making of international law.
It was close to 11pm on Tuesday night 25 June 2013 when a negotiator emerged from a room in the Atlas Medina hotel in Marrakesh and said, “We have a text!” The tense and exhausted group of activists, lawyers and representatives of blind groups erupted in cheers. There were tears and hugs all round. News had been seeping out over the preceding hours that things were going well and key issues in the text had been decided in our favour. We had a treaty and, even though we hadn’t seen the text, we knew by that point that it would be good.
For some that moment was the end of a five year struggle from an initial meeting organized by Knowledge Ecology International (KEI) with the World Blind Union (WBU) to discuss a potential treaty to help blind people to access books. The idea for such a treaty had previously been raised in the 1980s, but that hadn’t gone anywhere. Even this current treaty was considered by many to be a pipe dream as little as a year ago.
For me the journey to Marrakesh started only six months ago on a snowy night in Berlin. I was attending a meeting on access to medicines representing the Treatment Action Campaign. Walking back to the hostel where we were staying, James Love of KEI, having noticed my poor eyesight, started telling me about his work on the treaty for the blind. I knew the problem he described very well but I had no idea of the great work being done to solve it. After that conversation with Jamie I had no option but to get involved.
Marcus Low delivers the Civil Society Coalition closing statement at Marrakesh.
It is estimated that only 5 to 7% of books are available in formats accessible to blind people in developed countries. In developing countries, where the vast majority of the world’s blind live, that figure is around 1%. We call this lack of accessible books for the blind the book famine.
The book famine has two dual causes. Firstly, publishers simply haven’t taken the trouble to make their books accessible to blind people. There are only between 285 and 340 million blind and visually impaired people on the planet, not enough it seems to warrant investment in accessibility. The way around this case of market failure would be libraries that serve the blind. However, copyright law, the second cause of the book famine, has until now severely restricted what libraries could do for the blind.
The solution to the book famine that KEI and the World Blind Union started working on in 2008 was simple. They sought an international treaty that would create copyright exceptions specifically for visually impaired people. In other words, a treaty that would not change copyright law for anyone who is not visually impaired, but would relax copyright specifically and only for the visually impaired. In essence, the treaty would make the rather crude instrument that is copyright more sensitive to the real-world needs of a specific group of human beings.
The idea was soon taken up by a number of Latin American countries who introduced it at the World Intellectual Property Organisation (WIPO - a United Nations agency). After many rounds of discussion over a number of years a diplomatic conference to conclude the treaty was finally announced in December last year. It is that diplomatic conference that came to an end last Friday when 51 countries signed the Marrakesh treaty to facilitate access to published works for blind, visually impaired and print disabled people.
The details of the treaty are legalistic and we’ll have to wait and see how certain clauses are interpreted, but in short, the treaty signed last week will achieve the following:
It would allow so-called authorised entities (usually libraries) in one country to send accessible format books directly to authorised entities or blind individuals in another country. Prior to the treaty this was often unlawful and resulted in huge libraries of accessible books being trapped behind national borders. As a result, the same books had to be made accessible from scratch in each new country where a blind person needed it.
The treaty also allows for the unlocking of digital locks on e-books for the benefit of blind people. In other words, a Kindle book or iBook with digital rights management may now be unlocked and printed in Braille without consulting the rights holder.
Crucially, most of the language concerning commercial availability was dropped from the treaty late on in negotiations. Such language would have required authorised entities to check whether books are commercially available in the local market before making and providing accessible versions. This would have introduced substantial red-tape and would have had a chilling effect on the implementation of the treaty. It would also have set a higher standard for blind people than for normal libraries, where there is no restriction on providing commercially available books. (Commercial availability does however remain an option for countries who already have such provisions in their national law and choose to use it.)
The treaty has the potential to massively improve the educational and professional prospects of millions of visually impaired people around the world. However, the treaty will only come into effect once it has been ratified by 20 countries. This might take some months, or even years. In addition, many countries might have to change their national laws before they can utilize the provisions of the treaty. Important as the treaty is, it is still just a means to an end, and the end of unequal access to books for blind people is still some way away.
The relief and emotion of last Tuesday was enhanced by the fact that a mere three days earlier the treaty seemed to be heading for disaster. On Saturday the conference president had said that the negotiations were in crisis and jokingly threatened to close down the airports. His telling down of negotiators was not unjustified. Over the first few days of the conference some negotiators had shown remarkable cynicism and brinkmanship.
As observers, we were allowed to sit in a room near the negotiating room and listen to an audio feed of negotiations. We are not allowed to share any of the details of what we heard. Some negotiators disagreed with others and then refused to explain why they disagreed. Others debated some of the most standard treaty clauses and then let it go just as easily. It was cynical politicking of the worst kind.
At the same time, it was disillusioning to see the access industry lobbyists had to some key negotiators, especially the United States. This was openly on display in the halls of the Palais des Congrès where most of the negotiations were held and at the Atlas Medina Hotel where closed negotiations (so-called informals) took place. It was not surprising when midway through the conference the Washington Post broke a story, soon followed by the Guardian, about the extensive lobbying of U.S. negotiators by the Motion Picture Association of America.
Although most industry lobbyists had originally opposed a treaty, by the time we went to Marrakesh a treaty was virtually inevitable. No country wanted to be the one to walk away from a treaty for the blind. The only real question to be answered in Marrakesh was whether the treaty would be good enough to help alleviate the book famine. Whatever they may say now, the United States and European Union at the behest of their industry lobbyists would not have wanted as pro-blind a treaty as the one we ended up with.
Rather, most of the credit for the treaty must go to the excellent developing country negotiators who stood up for the interests of the blind and refused to give way under tremendous pressure from the US and EU. Many countries and many negotiators contributed, but the delegations of Nigeria, Ecuador, India, Brazil and Algeria did particularly good work. Their professionalism and humanity was a welcome antidote to the more cynical Americans and Europeans. We can only hope that a similar trend is reflected in other multilateral negotiations.
While the treaty has the potential to make a huge difference in the lives of visually impaired people, that is not the full extent of its relevance. For once it is a copyright treaty about user and human rights rather than the private interests of rights-holders. It is a treaty about exceptions to intellectual property rather than the further extension of intellectual property. It is a kind of human rights copyright treaty that the more cynical among us would not have thought possible.
Of course, if there is one treaty that was going to go the human rights route, it would probably have been the treaty for the blind. After all, failure to conclude a treaty on such a morally clear-cut issue would have been a damning indictment of the United Nations and WIPO’s ability to respond to humanitarian problems. Yet, small as the victory might be in the bigger picture of international trade and politics, it does symbolize a victory of humanity and decency over political cynicism. And that as much as the treaty itself is worth celebrating.
Marcus Low attended the WIPO Diplomatic Conference in Marrakesh, Morocco as Senior Advisor to the Civil Society Coalition, a network of organisations and individuals with an interest in the treaty. He is the editor of Equal Treatment and NSP Review. You can follow him on Twitter @marcuslowx.