On 12 November 2018, Philippine President Rodrigo Duterte signed the Instrument of Accession to the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or otherwise Print Disabled. On 18 December 2018 this instrument was deposited at the World Intellectual Property Organization (WIPO), and will be in force on 18 March 2019.
The Marrakesh Treaty was adopted by the WIPO on 27 June 2013 to address the global book shortage in this area by making books available to the blind community. It is the first treaty to include clear humanitarian goals as part of the solution in improving access to books and other printed works by visually impaired persons (VIPs), but at the same time protecting the intellectual property rights (IPR) of authors/creators by introducing exceptions to the copyright laws at the national level.
The World Health Organization (WHO) estimates there are 285 million people with visual impairment in the world, and 90% of them live in developing countries. As of 2017, the WIPO estimated that about 7% of publications worldwide are available to VIPs, underscoring the need for the Marrakesh Treaty.
Accession to the Marrakesh Treaty is very welcome in the Philippines. According to the Department of Health (DOH), more than 2 million people in the Philippines are blind or suffering from poor vision resulting in reduced functional ability, loss of self-esteem and reduced quality of life, which can lead to poverty and social dependency. While the government has a national policy on the prevention of blindness, it must also address the needs of those already visually impaired.
In anticipation of joining the treaty, the Intellectual Property Office of the Philippines (IPOPHL) had earlier introduced changes in the Intellectual Property Code (Republic Act (RA) No. 8293) that resulted in the passage of RA No. 10372, which took effect on 22 March 2013. The relevant change is reflected in section 184.1: “The reproduction or distribution of published articles or materials in a specialized format exclusively for the use of the blind, visually and reading-impaired persons: provided that such copies and distribution shall be made on a non-profit basis and shall indicate the copyright owner and the date of original publication” shall not constitute copyright infringement.
The original provision in section 184 of Limitations of Copyright was not changed, which states: “The provisions of this section shall be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder’s legitimate interest.” The above-mentioned provisions are compliant with the Marrakesh Treaty, which allows for optional commercial availability and a system for remuneration, subject to notification to the WIPO.
Salient points of the Marrakesh Treaty:
(1) Who is the beneficiary? Under article 3, a beneficiary is a person who:
(i) Is blind;
(ii) Has a visual impairment that cannot be improved to give visual function substantially equivalent to one who has no such impairment; or
(iii) Is otherwise unable, through physical disability, to hold or manipulate a book, or to focus or move the eyes to the extent that would be normally acceptable for reading.
(2) What are the works that are convertible to accessible formats? These are “literary and artistic works defined under the Berne Convention for the Protection of Literary and Artistic Works in the form of text, notation and/or related illustrations, whether published or otherwise made publicly available in any media.”
(3) What is an accessible format copy? It is a copy of a work in an alternative manner or form that gives a beneficiary access to the work as feasibly and comfortably as a person without visual impairment or print disability. This copy is used exclusively by beneficiary persons and it must respect the integrity of the work (article 2).
(4) Who is an authorized entity? This is “an entity that is recognized or authorized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis” (article 2).
(5) Main obligations of the contracting parties:
(i) To provide in their national copyright laws for a limitation or exception to allow beneficiaries and authorized entities to make changes needed to make work in an accessible format, for example, braille or audio information (article 4);
(ii) To allow for cross-border exchange of accessible format copies for exclusive use of beneficiary to beneficiaries and authorized entities (article 5);
(iii) To protect the privacy of beneficiary on an equal basis with others (article 8).
So far, 80 countries have signed the Marrakesh Treaty including the EU’s 28 member states, and US President Donald Trump signed into law its accession on 9 October 2018. This opens to the VIPs of the Philippines access to enormous collections of published works.
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