Members of the copyright industry and their political allies are currently waging an EU lobby battle over proposed copyright exceptions. For the 285 million blind and visually disabled people globally, such exceptions would provide better access to a wider range of print publications, but industry is fiercely protective of its intellectual property rights.
The global Marrakesh Treaty was agreed in 2013 under the auspices of the World Intellectual Property Organisation (WIPO). It sets out exceptions and limits to copyright rules so that people unable to use print media (including blind, visually impaired, and dyslexic people) can access a far greater range of books and other written materials in accessible formats. These exceptions to copyright law are important in helping to combat the ‘book famine’ for print-disabled readers. The Marrakesh Treaty is particularly important in global south countries where the range of materials in an accessible format – usually expensive to produce and disseminate – can be extremely limited. How the EU implements the Treaty is crucial, given the majority of books in accessible formats are produced in EU member states.
In the years before the Treaty was negotiated and finalised, the publishing and entertainment industries around the world were vociferous in lobbying against it. They argued that a voluntary approach between publishers and civil society would be the best way to ensure that print-disabled people received access to reading materials. As the Treaty became more and more likely to be passed, other corporate lobbyists joined the fray. For example, one of Europe’s biggest and most influential lobby groups BusinessEurope argued that Treaty negotiations should be delayed as they risked “global intellectual property rights weakening”. Even non-affected industries such as Caterpillar, the machinery manufacturer, joined the campaign to oppose it, apparently convinced that the Treaty would act as a slippery slope towards weaker intellectual property rules elsewhere.
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The EU eventually signed the Treaty in 2014, having previously opposed it; but the ratification process (which would actually introduce the Treaty into EU law) has been slow and subject to further corporate interference and member state procrastination.
Objections from some member states in the Council to the Marrakesh Treaty have been present from the beginning, a fact that has been used to delay EU ratification.
Eight member states – Finland, France, Hungary, Italy, Lithuania, the Czech Republic, Romania, and the UK – argued that the matters within the Marrakesh Treaty were not an EU competence, although the European Court of Justice has recently rejected this view.
The World Blind Union’s David Hammerstein criticised the delays, complaining that “a group of EU member states in the Council have made us needlessly lose over three years in being able to help the right to read of millions of visually-disabled persons inside and outside the EU” while the European Parliament similarly expressed its “profound indignation”.
Member states in the Council have further dragged their feet by arguing that they could not ratify the Treaty until new legislation was in place to implement it, namely an EU directive to harmonise the rules between member states, and a regulation to govern cross-border exchanges with third countries. But new legislation not only delays the on-the-ground implementation of the Treaty provisions, it also opens up the possibility of negative amendments being introduced to weaken the Treaty.
Industry’s lobby efforts have attempted to re-frame the Marrakesh Treaty away from being a matter of human rights, education, and social justice, towards a copyright agenda by portraying it as a threat to business’ interests. But contrary to the obvious benefits of the ratification and implementation of the Marrakesh Treaty for the 30 million blind or visually-impaired people in Europe (and 285 million worldwide), several EU member state governments have instead bought the business line that these issues should be viewed through the lens of copyright.
The German government has been very active on the Marrakesh Treaty. Official reports by an attaché at the German permanent representation to foreign ministry colleagues explaining discussions held at the Council working group on intellectual property (which have been seen by Corporate Europe Observatory) are very revealing. They report that during several meetings held in November – December 2016 at which the Marrakesh Treaty was discussed, the German government repeatedly spoke in favour of compensation provisions (together with Spain, Austria,Finland and others), a position in line with business’ arguments.
In fact the German government has gone to extraordinary lengths to promote its view during the legislative process on the Marrakesh Treaty. In particular, the German permanent representation in Brussels sent to several MEPs (the Green MEP Max Andersson who is the rapporteur on both the regulation and the directive on the Marrakesh Treaty; and two German MEPs: centre-right Axel Voss and centre-left Dietmar Köster) a letter from the German government formally requesting they include these publishers’ compensation provisions.
This is a very unusual intervention by the German government in the work of the European Parliament and Max Andersson wrote back on 9 February to explain why he rejected its proposal. Shortly after, on 23 February, a further letter was sent to Max Andersson, this time from the Börsenverein des Deutschen Buchhandels (German book trade association) to explain the rationale for the German government’s intervention! This makes it look like there was close cooperation – should we even say collusion? – by an EU member state and commercial interests.
The Publishers’ Association (PA) in the UK has also been active on the Marrakesh Treaty. While careful to preface its comments with “support” for the Treaty, a PA submission to the UK government on the Commission’s copyright proposals in December 2016 pushed the inclusion of commercial availability, compensation, and language on authorised entities as well as supporting the call “from our German colleagues for the passage of [Article 12 of the draft DSM] to be expedited”. A glance through its newsletters for 2016 (those for 2017 are not publicly available) reveal a long list of contacts with UK and EU officials and decision-makers (even though the PA is not currently a member of the EU lobby register).
And it seems like the UK government is listening. The UK government’s position, as articulated to the Parliament’s second chamber (the House of Lords) in November 2016 highlights the commercial availability provision already in place in UK law, and potential “negative” effects” if the Marrakesh Treaty were to override that. Further evidence seen by CEO shows that the UK government continues to defend provisions on commercial availability.
Furthermore, in January 2017, the UK made a formal proposal within the Council to introduce the commercial availability issue and allow compensation for publishers.
In another German permanent representation report (seen by Corporate Europe Observatory) about the 31 January 2017 discussion at the Council working group on intellectual property, many member states apparently expressed the view that the UK’s proposal “goes in the right direction” (including France, Germany, Spain, Sweden, Austria, Denmark and the Netherlands).
The concern of print-disabled people’s rights’ campaigners is that the UK which has commercial availability provisions already in domestic law are now demanding to allow them across the EU via the Marrakesh Treaty, just to preserve domestic provisions, with little concern for how this will impact upon the future rights of print-disabled people to get accessible-format reading materials.
Corporate Europe Observatory has seen papers which were due to be discussed on 8 March 2017 at the Council working group. The European Blind Union and World Blind Union have written to all 28 EU member states to express their concern that the ‘commercial availability’ and compensation clauses are no longer explicitly ruled out, indeed compensation is now specifically included, and calling this a ““make or break” issue to achieve positive EU legislation for visually-impaired persons”.
Campaigners for print-disabled people’s rights say that the fate of the Marrakesh Treaty in the EU is crucial because the majority of books in accessible formats are produced in EU member states. Without the active and effective sharing of these books which the Marrakesh Treaty aims to promote, millions of mainly poor print-disabled people in the global south will not gain access to these resources in key languages such as English, Spanish, and French.
The EU rules which implement the Marrakesh Treaty will be used as a template for others, including in the US, where the ratification process is quite advanced but also coming under strong industry pressure. So it is really important that the EU institutions get the Treaty ratification process right.
But in the EU, the Marrakesh Treaty is at risk of being reframed as a copyright issue. In the long fight to secure the Treaty, industry voices initially opposed it and it was only thanks to the tenacity of campaigners and governments (especially in the global south) that led to it being negotiated and agreed. This forced industry lobbyists to narrow their demands and act more subtly to put forward their views. But the copyright industry, including publishers, are actively lobbying MEPs and member states. The latter are not only listening, they have adopted industry’s cause. Too many member states appear to have forgotten that they should be driven by the public interest, and not the economic interests of specific industries.