Copyright and Marrakesh Treaty in Latin America

It’s been seven years since the entry into force of the Marrakesh Treaty (or hereinafter the Treaty), and yet there are more countries not implementing it than the ones who are. The Marrakesh Treaty is a tool created by the international community that forms part of the body of international copyright treaties administered by the World Intellectual Property Organization (WIPO), which’s main purpose is to enable the creation and distribution of copies of works in accessible formats for people with difficulties in accessing the text, such as the blind, visually impaired, or otherwise print disabled.

It was adopted on June 27, 2013, by the member states of the WIPO and entered into force on September 30, 2016, with Canada depositing its instrument of ratification as the 20^th member state. The Latin American countries that implement it to today’s date are Argentina, Ecuador, Peru, Uruguay, Paraguay and Colombia. On the other hand, it is still to be implemented in Brazil, Chile, Mexico and Venezuela.

The Treaty’s provisions require its contracting member nations to create limitations and exceptions to copyright law that will make it easier for those with these kinds of print disabilities to access printed works in accessible formats such as Braille and digital audio files. It also establishes rules for the exchange of such accessible format copies across borders.

To fulfill the intent of the Treaty, it is important that local regulations provide that all types of libraries, from special libraries serving people with disabilities to academic and public libraries, be encouraged to assume the role of authorized entities as those empowered to provide users with print disabilities timely access to accessible materials.

Argentina ratified the Treaty in 2014 and enacted Law No. 27.588 for its implementation in the year 2020. Among other provisions, Intellectual Property Law No. 11.723 was amended by the means of this regulation, providing:

the exemption from payment of royalties in cases of reproduction, distribution and making available to the public of works in accessible formats to those with difficulties in accessing the text, provided that such acts are made by authorized entities;
the meaning and scope of important terms such as:

“authorized entities”: government body or non-profit association with legal status recognized by the government, which assists or provides education, pedagogical training, adapted reading or access to information to blind people or people with other sensory disabilities, as one of its main activities or institutional obligations;

“sensory disability”: severe visual impairment, amblyopia, dyslexia, or any other physical or neurological impairment that affects vision, use, or understanding of the printed text in conventional form, as well as any severe hearing impairment that cannot be corrected to allow a degree of hearing substantially equivalent to that of a person without a hearing impairment, or other disability that prevents the person from normal access to the work;
“accessible formats”: braille, digital texts, audio recordings, sign language fixations, and any alternative form that may provide access to the work to beneficiaries, such access being as feasible and convenient as that of a person without visual or other sensory impairments, provided that such accessible format copies are intended exclusively for them and respect the integrity of the original work, with due consideration given to the necessary changes to make the work accessible in the alternative format and the accessibility needs of the beneficiaries.
The creation of a catalog listing the works reproduced in an accessible format for the beneficiaries, under the responsibility of the National Library, in order to have a directory of such copies and ease their national and international exchange.

Uruguay was the first Latin American country to implement the Treaty, by ratifying it in the year 2015 and passing internal laws by 2017. Several procedure guidelines have been implemented, for the creation and dissemination of an accessible library. Several training courses for blind and visually impaired people and librarians were also given. As of today, libraries of different state faculties, where blind or visually impaired students study, are governed by these guidelines. Even the Library of Congress uses these guidelines when designing publications.

On another note, Ecuador ratified the Treaty in 2016 and was one of the Treaty’s proponents. The National Intellectual Rights Service of Ecuador (SENADI for its acronym in Spanish) has recently signed an agreement with the Japan International Cooperation Agency (JICA) to obtain support of Japanese experts in the evaluation, planning and development of capacities for the production and use of accessible publications in the country.

Colombia’s ratification was in 2019, and then the Treaty entered into force in 2021, by means of Law No. 2090. The National Institute for the Blind (INCI), is the governmental body that creates books for the visually impaired in Braille, digital and audio files, and therefore has a digital library and printing press for the blind, being the competent authority for the distribution of works within the framework of the Marrakesh Treaty in Colombia.

Perú has implemented the Treaty by means of a Copyright Guideline to understand its provisions for the year 2020, aimed at government entities, publishers, entities that provide support to the visually impaired, and the general public, in addition to other initiatives that the National Institute for the Defense of Competition and Intellectual Property Protection (INDECOPI for its acronym in Spanish) has been putting in place.

Brazil ratified the Treaty in 2015 which entered into force in October 2018. However, its implementation remains to be carried out. In 2019, a public consultation was opened on how best to regulate the Treaty.

This is a big step for the effective inclusion of all people in the world of reading and education. We strongly support Marrakesh Treaty and hope that more countries sign it and implement it in the countries where the Treaty is in force. Even when the provisions of the Treaty create limitations and exceptions to copyright, in our opinion, these are well-considered as they aim to help people interact with the world through access to reading and education.

For further information please contact: abalbo@ojambf.com.

Copyright and Marrakesh Treaty in Latin America