BY GEORGIA OSMOND

Approximately 90% of written works published worldwide are inaccessible for visually impaired people.[1] In comparison, 285 million people globally are blind or visually impaired,[2] 168,000 of which live in New Zealand.[3] Visually impaired people need to have accessible format copies of works, whether it be in Braille, audiobook, or another format. The only way accessible format works can be created is if the copyright owner gives permission for these works to be created, or if exceptions exist that limit their rights.

The creation and implementation of the Marrakesh Treaty provides print-disabled people with the opportunity to gain access to literary and artistic works through the creation of accessible format copies and the importation and exportation to other member states.

New Zealand joined the Treaty in 2017, however it was necessary to make changes to the Copyright Act 1994 to implement it in its entirety. This has been done through the Copyright (Marrakesh Treaty Implementation) Amendment Bill, which has recently received royal assent.

What is the Marrakesh Treaty?

The Marrakesh Treaty, developed by the World Intellectual Property Organisation, aims to increase accessibility to books, magazines, and other printed literary and dramatic works for people defined as ‘beneficiary persons’.[4] These are people who are blind, have a visual impairment or reading disability, or otherwise have a physical disability that prevents them from reading at a normally accepted standard.[5]

The ultimate aim of the treaty is to enable bodies described as “authorised entities”, as well as beneficiary persons, to produce accessible format copies of works without infringing copyright. It also enables Treaty states to import and export accessible format copies, increasing the amount of accessible works available globally. As of July 2019, there are 57 contracting parties to the Treaty.[6]

The Treaty was formally adopted in June 2013 and entered into force September 30th 2016. The Treaty has no formal relationship with other international copyright agreements, so countries do not have to join other copyright treaties to enact it.[7] Countries that adopt the Treaty are required to make one or more exceptions or limitations to their national copyright law.[8] This is to ensure they can publish, distribute, and import or export works without infringing the rights of the copyright owner.

Articles in the Marrakesh Treaty

The Treaty sets out important definitions, as well as optional provisions for countries to enact.

Article 2 uses the same definition of ‘works’ as is used in Article 2 of the Berne Convention. This includes books, pamphlets, lectures, addresses, sermons, dramatic and dramatico-musical works, illustrations, maps, plans, and sketches.[9] The exceptions and limitations enacted by countries when implementing the Treaty apply to all literary and artistic works, regardless of the media they appear in, and applies to published and non-published works.[10]

‘Accessible format copy’ is defined as a work in an alternative manner or form which a ‘beneficiary person’ can access. Importantly, the work must be for the exclusive use of beneficiaries and must maintain the integrity of the original work.[11]

‘Authorised entities’ are defined as organisations that can make formal copies, obtain copies from other beneficiaries and authorised entities, and make and distribute accessible format copies to send to beneficiaries and authorised entities overseas.[12] They are not just groups that directly serve the print-disabled community, but also include schools, libraries, and healthcare organisations.

Article 4(1)(a) requires states to introduce exceptions and limitations to their national copyright laws to allow reproduction, distribution, and public availability of accessible format copies. Works can also be modified, if necessary, to enable them to become accessible format copies. The relevant domestic legal system must allow changes to be made to copyright protected works that constitute derivative works, as well as changes that may impact on the integrity of the work under the Berne Convention. [13] Including these limitations and exceptions means that authorised entities are able to make accessible format copies of copyrighted works without worrying that they will be breaching copyright.  

There are two provisions in the Treaty that are not necessary for implementation but can be introduced if desired. The first is the ‘commercial availability’ test under article 4(4). Under this provision, the relevant country can ban the creation of accessible format copies if the copyright owner has made the work commercially available under reasonable terms in the market. This causes issues for print-disabled people and authorised entities, as it limits access to accessible works, and can prove costly in time and finances for authorised entities.[14]  

The other non-compulsory provision in the Treaty is contained in article 4(5). This allows states to be compensated as a condition of creating or distributing accessible format copy works. However, the Guide to the Marrakesh Treaty recommends that these provisions should be avoided as they conflict with the overriding principles of the Treaty.[15] Nevertheless, three countries (Australia, Canada, and Japan), have included the article 4(4) commercial availability test when acceding to the Treaty.[16]

Current State of the Law

Section 69 of the Copyright Act 1994 allows bodies defined as ‘prescribed bodies’ to make and communicate accessible format copies without needing authorisation from the copyright owner. However, this exception does not allow prescribed bodies to import or export these accessible format copies.[17] When New Zealand joined the Marrakesh Treaty, the Government recognised the need to change copyright laws to properly implement the Treaty. This included allowing the import and export of accessible format copies, as well as other changes.

A National Interest Analysis undertaken in 2017 noted the areas where New Zealand does not meet its obligations under the Marrakesh Treaty. This included:

1. The current exclusion of importation and exportation of accessible format copies;

2. A definition of ‘works’ that did not include all those covered by the Treaty;

3. The full scope of conditions that organisations must observe when producing or providing the accessible format copies; and

4. The failure of the current definition of ‘print disability’ to include all those defined in the Treaty.[18]

The Analysis determined that for the Treaty to be enacted, amendments to the Copyright Act were necessary. Changes that to be made included:

1.      An assurance of cross-border exchange between member states;

2.      An extension of the categories covered to include artistic works;

3.      An expansion of the conditions related to production and provision of accessible format copies, such as the creation of records detailing which works had been copied; and

4.      Recognition that people with low vision and reading disabilities are explicitly included in the definition of ‘print-disabled’ provided in section 69.[19]

By implementing the Treaty, the Analysis recognised that there would be social and economic benefits for New Zealand. This included greater access to education for print-disabled people and better use of resources for organisations tasked with providing and producing accessible format copies.[20]

Changing the Law

The Bill was first introduced by the Honourable Kris Faafoi on November 1st 2018. It had its first reading on November 8th 2018 and was referred to the Economic Development, Science and Innovation Committee. Until February 10th 2019, submissions could be made regarding the Bill.

The Ministry of Business, Innovation and Employment (MBIE) produced a departmental report on May 8th 2019 discussing the submissions received by the Committee. 20 written submissions and nine oral submissions were made and received. None of the submissions opposed the Bill or New Zealand’s accession to the Marrakesh Treaty.[21] However, two of the main issues raised across submissions were the inclusion of the commercial availability test and ensuring that authorised entities complied with conditions when making accessible format copies.

Copyright owners, authors and publishers that made submissions on the Bill supported the inclusion of the commercial availability test on the basis that it would prevent loss of sales due to the section 69 exception.[22] If the test remained, it would mean that authorised entities would not be able to import or export accessible format copies if they were commercially and reasonably available in New Zealand. However, other submitters felt that the test should be excluded. If it remained, it would create more of a burden on authorised entities to try and obtain accessible copies when there were others available overseas.[23] As other countries like the United States have not incorporated the test, there was concern that they would not import or export accessible format copies if they were also required to meet the commercial availability test. MBIE felt that as the test was carried over from the current section 69 into the Bill, it should remain. If, once enacted, it was found that the test was too onerous, it could be removed.[24]

The other concern was the inadequate conditions placed on authorised entities for producing and providing accessible format copies. Copyright owners and publishers argued that stricter guidelines should be put in place to ensure that authorised entities followed the correct procedures, and that remedies should be implemented in case of infringement.[25] MBIE did not agree with this. They felt that the conditions imposed by the Bill were strict enough and complied with those set out in the Marrakesh Treaty. They did concede, however, that section 69C needed to be amended to ensure that authorised entities kept records of accessible format copies made by and received from individuals, and that voluntary guidelines could be made.[26] They noted that the remedies in Part 6 of the Copyright Act would be sufficient for copyright infringement.[27]

The final report of the Select Committee was released on May 8th 2019. The report made significant changes to the Bill, including the removal of the commercial availability test, replacing ‘prescribed bodies’ with ‘authorised entities’ and widening this definition, clarification of the definition of ‘print disability’, and providing for situations where an individual or organisation is not an authorised entity but produces or provides an accessible format copy. This was followed by the second reading of the Bill on July 30th, the committee of the whole House on August 6th, and the third reading of the Bill on August 7th. The Bill received royal assent on August 12th 2019.

 The Copyright (Marrakesh Treaty Implementation) Amendment Act 2019

 The new Act removes section 69 from the Copyright Act 1994 and replaces it with the new sections 69-69D. The definition of ‘print disability’ is clarified, meaning a person with an impairment that prevented them from enjoying a copyrighted work to the same degree as someone without that impairment, but which is not something that could be improved by wearing glasses or through other methods.[28] ‘Authorised entity’ was adopted and defined as an educational establishment, an educational resource supplier, a prescribed library within the meaning of s50(1) of the Copyright Act, or a charitable entity with the purpose of making accessible format copies.[29]

 Importantly, 69A removes the commercial availability test. An authorised entity only has to ensure that they have taken all reasonable steps to notify a copyright owner of their intention to make an accessible format copy before they make, import, or export into or out of New Zealand accessible format copies. These copies must be supplied exclusively to people with a print disability, and the copies must respect the integrity of the original work.[30] Section 69B allows someone who is not an authorised entity to make, import or provide an accessible format copy if they have a print disability, or are working on behalf of someone with a print disability, without infringing copyright.[31] 

Amending the Copyright Act has enabled New Zealand to accede to the Marrakesh Treaty. The changes to the Act are monumental in terms of allowing those with print disabilities greater access to works which they have, up until now, been unable to adequately access. This is a positive step for New Zealand in recognising its commitment to the UN Convention on the Rights of Persons with Disabilities, as well as steps towards making New Zealand a more inclusive country.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site.

Featured image source: blindfoundation.org.nz

[1] The Conversation “New Zealand considers changes to copyright law” (24 July 2019) Scoop Independent News <www.scoop.co.nz>

[2] WIPO “The Marrakesh Treaty: Helping to end the global book famine” 2016.

[3] The Conversation “New Zealand considers changes to copyright law” (24 July 2019) Scoop Independent News <www.scoop.co.nz>

[4] WIPO “The Marrakesh Treaty: Helping to end the global book famine” 2016.

[5] Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print-Disabled, adopted by the Diplomatic Conference, VIP/DC/8 (opened for signature 27 June 2013, entered into force 30 September 2016), art 3.

[6] WIPO “WIPO-Administered Treaties” <www.wipo.int>

[7] WIPO “The Marrakesh Treaty: Helping to end the global book famine” 2016, at 5.

[8] At 4.

[9] Berne Convention for the Protection of Literary and Artistic Works, WIPO 828 UNTS 221, September 9 1886, as revised at Stockholm on July 14 1967, art 2(1).

[10] Laurence R Helfer, Molly K Land, Ruth L Okedji and Jerome H Reichman The World Blind Union Guide to the Marrakesh Treaty: Facilitating Access to Books for Print-Disabled Individuals (World Blind Union, Toronto, 2016) at 72.

[11] Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print-Disabled, above n 5, art 2(b).

[12] Art 2(c).

[13] Berne Convention for the Protection of Literary and Artistic Works, above n 9, Art 6bis. 

[14] At 120.

[15] At 20. 

[16] WIPO “WIPO-Administered Treaties > Contracting Parties > Marrakesh VIP Treaty” <www.wipo.int>

[17] Economic Development, Science and Innovation Committee Copyright (Marrakesh Treaty Implementation) Amendment Bill (8 May 2019) at 1.

[18] “National Interest Analysis: Proposed Accession to the Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired, or otherwise print-disabled” (23 May 2017) at 10.

[19] At 2.

[20] At 13-14.

[21] Ministry of Business, Innovation and Employment Copyright (Marrakesh Treaty Implementation) Amendment Bill: Departmental Report to the Economic Development, Science and Innovation Committee at 4.

[22] At 5.

[23] At 5.

[24] At 6.

[25] At 7.

[26] At 7.

[27] At 8.

[28] Copyright (Marrakesh Treaty Implementation) Amendment Act 2019, s 4.

[29] S 69(1).

[30] S 69A(2).

[31] S 69B.