The Marrakesh Treaty facilitates access to published works by persons who are blind or visually impaired. This publication of the National CRPD Monitoring Mechanism looks at the steps the Federal Government must take in order to implement the Marrakesh Treaty and thus improve access to books for persons with disabilities.
More books in accessible formats
Why Germany should finally implement the Marrakesh Treaty
In 2013 the Marrakesh Treaty was celebrated as a great achievement for persons with reading or visual impairments: the international treaty would ensure that they had access to books in accessible formats. The treaty has not yet been ratified by Germany's Federal Government however, due to dispute with the European Commission over who is responsible for its implementation.
In Germany, people who are blind or visually impaired or whose ability to read is impaired in some other way(1) have access to five percent, at best, of the literary, artistic and scientific works published in this country.(2) The situation is even more dismal for people in other countries who are blind or visually impaired: less than one percent of books published in the developing world are made available in accessible formats, such as Braille, large-print editions and audio books. This deplorable state of affairs worldwide is a result both of national regulations and of a lack of ideas as to how the international distribution of books for persons with visual or reading impairments might work. For instance, provisions of German copyright law (and similar provisions in the laws of other countries) create barriers to the production and dissemination of works in accessible formats. Another pragmatic barrier is the poor profit outlook for publishing houses associated with production for an extremely small group of consumers.
This is where the Marrakesh Treaty(3) comes in: the treaty provides for considerable improvements in access to books in accessible formats for persons with reading and visual impairments. Developed within the framework of the World Intellectual Property Organization (WIPO), the international treaty was adopted on 2 June 2013; it will soon enter into force internationally, as 16 countries of the 20 countries required have already committed themselves to it at the time of writing.
The treaty provides for new legal provisions permitting accessible-format copies of works to be made without the authorization of the copyright holder (Article 4). This would involve limiting the copyright-protected rights of use that an author transfers to a publishing house in Germany. The treaty also contains a set of rules governing the cross-border exchange of accessible-format copies (Article 5). Thus it opens up the possibility of sending accessible-format copies of works that are made in one place to users in other countries; for instance, a book in Braille produced in Germany could also be read by German-speakers in other countries who are blind.
With the aims of making cultural goods accessible to everyone and of helping persons with disabilities in poorer countries, the Treaty of Marrakesh is closely bound up with the UN Convention on the Rights of Persons with Disabilities (UN CRPD) both with respect to content and in practical terms. It is true that the UN CRPD already obligates its signatory states to take measures to ensure "access, on an equal basis[...] to information" (Article 9 of the UN CRPD) and to ensure participation in cultural life in the form of access to cultural materials (Article 30 of the UN CRPD). The Marrakesh Treaty is far more specific when it comes to the accessibility of cultural products than the UN CRPD is though. In its specificity, it also goes beyond the international cooperation called for in the UN CRPD (Article 32 of the UN CRPD).
Competence dispute between EU and its member states
The adoption of the Marrakesh Treaty was celebrated as a historic event in many countries, including Germany, where it met with widespread approval: civil society organisations representing blind and visually impaired persons and the German publishing houses looked on the treaty with the same degree of approval accorded to it by the Federal Government. Although the treaty has already been signed by Germany, it is still awaiting ratification by the Federal Government.(4)
The reason for the delay is a dispute between the European Union and its member states about who has the authority to ratify and implement the treaty. The dispute involves the European Commission on the one side and a group of the EU's 28 member states, including Germany, on the other. The EU sees itself as having exclusive competence, while some of its member states, believing that the treaty requires ratification by the member states as well, do not wish to concede this authority to the EU. These states insist that the Marrakesh Treaty is a "mixed treaty", touching on the competences of both the EU and its member states.
In September 2015, the European Commission requested the European Court of Justice to deliver an opinion clarifying whether the European Union has exclusive competence to conclude the Marrakesh Treaty. It may be years before the European Court of Justice clarifies the issue. Due to the lack of clarity in the legal situation, neither the member states nor the European Union have acceded to the treaty as yet. The Commission and the member states have been blaming each other for the deadlock.
United Nations calling for implementation of the treaty
The United Nations has admonished the EU and its member states for their obstructive stance: in May of 2015, in the context of its review of UN CRPD implementation in Germany, the UN Committee on the Rights of Persons with Disabilities called on Germany to refrain from further delaying implementation of the Marrakesh Treaty, later calling on the European Union to do the same. In the Concluding Observations it addressed to Germany, the Committee stated:
"The Committee is concerned that the State party has not yet acceded to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. […] The Committee encourages the State party to adopt all appropriate measures, including ratifying and implementing the Marrakesh Treaty, as soon as possible in order to facilitate access to published material for blind persons, persons with visual impairments and persons with other difficulties in gaining access to published works."(5)
At the time of writing, the Federal Government has not taken any position on the Committee's request. Nor does the draft version of the national action plan for CRPD implementation released by the Federal Ministry for Labour and Social Affairs on 16 November 2015 address the Marrakesh Treaty, this despite the fact that one of the aims of the action plan is to provide policy responses to the UN Committee's recommendations.
The Marrakesh Treaty is extremely important from a human rights point of view because it is intended to help overcome the enormous disadvantages faced by blind and visually impaired people. The current impasse is therefore wholly unsatisfactory. It also constitutes a deficit in implementation within the meaning of the CRPD. It is particularly absurd that a dispute could erupt between the EU and its member states, including Germany, merely for reasons of form despite consensus over the treaty’s contents. This conflict is being played out at the expense of people who have already had to wait far too long for access to books and other cultural products in accessible formats.
Persons with visual and reading impairments have a right to take part on an equal basis with others in cultural life and have equal access to information and knowledge. The Federal Government should therefore implement the Marrakesh Treaty within the scope of its mandate now, regardless of the current lack of clarity in the legal situation.
The Federal Government should
1. Under Article 3 of the Marrakesh Treaty, people who are "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" are also among those whom the treaty is intended to benefit.
2. See World Blind Union (2013): WBU Statement on Marrakesh Treaty. www.worldblindunion.org/English/news/Pages/WBU-Statement-on-Marrakesh-Treaty.aspx (retrieved: 04 Apr. 2016).
3. For the text of the Treaty see: www.wipo.int/treaties/en/ip/marrakesh/#treaties (retrieved: 04 Apr. 2016).
4. See the Federal Ministry of Justice and Consumer Protection (BMJV) press release of 14 May 2014. www.bmjv.de/SharedDocs/Artikel/DE/2014/05142014_Vertrag_von_Marrakesch.html (retrieved: 04 Apr. 2016) (German only).
5. UN Committee on the Rights of Persons with Disabilities (2015): "Concluding observations on the initial report of Germany", UN-Doc. CRPD/C/DEU/CO/1 of 13 May 2015, paragraphs 53 and 54.