CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
6 July 2013
Support groups for the blind and visually-impaired worldwide, including even the World Intellectual Property Organization (WIPO) officials and member-states recently hailed the adoption of the Marrakesh Treaty To Facilitate Access To Published Works For Persons Who Are Blind, Visually Impaired, Or Otherwise Print Disabled, or Marrakesh Treaty, for short last 27 June 2013, in Marrakesh, Morocco.
The treaty, which according to Knowledge Ecology International head James Love, took five years to negotiate, is the first treaty of its kind to be administered by WIPO that is based on user rights, and is the first treaty to focus on the human right to “participate in the cultural life of the community.”
The treaty, according to Mr. Love, provides a strong legal and political basis for copyright exceptions for persons with disabilities. The treaty will vastly expand access to works, particularly among persons sharing a common language, such as English, Spanish, Arabic and French, or persons who read multiple languages, or persons living in other countries with different languages.
For the group Electronic Information for Libraries (EIFL), the treaty seeks to address the “book famine” for print disabled people by creating an international legal framework to enable the cross-border sharing of accessible materials.
In a precedent-setting fashion, fifty-one countries signed the Treaty on June 28, 2013, during the Diplomatic Conference for the Treaty held in Marrakesh, Morocco. These countries are :
Afghanistan, Bosnia and Herzegovina, Brazil, Burkina Faso, Burundi, Cambodia, Cameroon, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Côte d’Ivoire, Cyprus, Democratic People’s Republic of Korea, Denmark, Djibouti, Dominican Republic, Ethiopia, Ghana, Guinea, Haiti, Holy See, Jordan, Kenya, Lebanon, Luxembourg, Mali, Mauritania, Mauritius, Mongolia, Morocco, Nepal, Nigeria, Panama, Paraguay, Peru, Republic of Moldova, Sao Tome and Principe, Senegal, Sierra Leone, Sudan, Switzerland, Togo, Tunisia, Uganda, United Kingdom, Uruguay (51)
The Philippines is not in this list of countries, perhaps the Intellectual Property Office of the Philippines does not see a need to deal with this Treaty considering that the one signed by President Aquino, only this March 2013, the Intellectual Property Code amendments, now Republic Act 10372, already contains a single provision providing for exceptions to copyright law for visually-impaired persons in the Philippines, which reads :
“Sec. 184. Limitations on Copyright –
“(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 the original publication.”
This IP Code amendment on copyright law will need to be amended further to incorporate the beneficial provisions of the Treaty which provides for, among others, (1) cross-border exchange of accessible format copies; (2) importation of accessible format copies; (3) exceptions concerning the application of technological protection measures; (4) respect for privacy of the users of copyrighted materials.
Cross-border exchange involves, among others, inter-library loans from one country to another, who would be Parties to the Treaty, of, for example, Braille books which may not be available in the country but may be present in another country, like, Japan; and also parallel trade, for example, the buy and sell of second-hand books and copyrighted materials (am not really sure if there’s a secondary market for these types of reading materials for our blind, visually- and reading-impaired fellow Filipinos). The Treaty also covers the importation of these same materials.
Whether OFWs coming back to the Philippines can avail of these provisions for the benefit of their loved ones who may be blind or visually- or reading-impaired is a matter that will have to be addressed by the Intellectual Property Office considering that the IP Code amendments appear to be restrictive on these types of activities.
Another interesting aspect of the Treaty that may clash with the Philippine IP Code amendments relates to the provision on technological protection measures (TPMs). These are the locks and other devices embedded in gadgets from which copyrighted materials are accessed (cellphones, e-books, etc.) that prohibit the user from further copying or distributing the copyrighted material. The IP Code amendments prohibit the circumvention or the breaking of these locks so that the user should always pay the copyright holder each time the copyrighted material is used and considers it an aggravating element in a criminal offense that may be filed against the lock breaker.
The Marrakesh Treaty provides that these TPMs do not prevent beneficiary persons from enjoying the limitations and exceptions provided for by the Treaty, meaning that the benefits provided by the Treaty are not affected by the TPMs, in short, these TPMs cannot be asserted as against the blind, and the visually- and reading-impaired.
As regards the right to privacy, this means that the blind and the visually- and reading-impaired are immune from the blanket authority of the Deputy Directors- General of the Intellectual Property Office to conduct warrantless searches and seizures in instances of violation of the provisions of the IP Code amendments.
The Marrakesh Treaty gives impetus for tackling afresh the IP Code amendments on copyright law and looking at them in a different way, in embedding in the amendments the user-friendly provisions of the Treaty. The first task, however, is to make the Philippines sign the Treaty.
Supporters and families of the Filipino blind, visually- and reading-impaired, your work is cut out for you. If you do not take action to push the Philippines to sign this Treaty, then we will be stuck with a less-than beneficial IP Code amendment provision that is not fully in step with this recent international achievement.