The need to go beyond ratifying the Marrakesh VIP Treaty: The case of Ethiopia

2.1 The UNCRPD

The CRPD is the first comprehensive international human rights treaty to realise the rights of persons with disabilities, the genus of which also includes persons with visual impairment. It adds new requirements for state parties to previous human rights treaties to promote, protect, and fulfil the rights of persons with disabilities on an equal footing with others. Moreover, with respect to political, cultural, and national/community life, it protects for persons with disabilities ‘the freedom to seek, receive, and impart information and ideas on an equal basis with others and through all forms of communication of their choice’.11

The CRPD requires state parties to ensure the provision of ‘information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost’.12 It also requires state parties to facilitate ‘the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes, and formats of communication of their choice by persons with disabilities in official interactions’.13 Moreover, states are obligated to take all appropriate measures ‘urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities’.14

The CRPD further obligates states to ensure, without discrimination and on the basis of equal opportunity, ‘an inclusive education system at all levels and lifelong learning’.15 It also states that ‘cultural materials, such as television programs, films, theatre, and other cultural activities’, as well as ‘cultural performances or services, such as theatres, museums, cinemas, libraries, and tourist services’, must be accessible to persons with visual impairment.16 Finally, it requires states to ensure that persons with disabilities enjoy the right to be informed and to participate in elections, public administration, public affairs, and decision-making processes.17

However, the CRPD is not comprehensive enough in this respect as it, through article 21 on ‘Freedom of expression and opinion and access to information’, mandates state parties only to encourage and urge mass media and private entities to make their services accessible respectively.18 On the scope of paragraphs (c) and (d) of article 21, it is obvious that the Convention uses wording that is more elastic concerning private entities compared with paragraphs (a) and (b) of the same article concerning states.19 The terms ‘urge’ and ‘encourage’ make it unclear how the state is to act in relation to private entities to ensure that the rights of persons with disabilities are exercised on an equal basis with others.20

In addition, the CRPD is not too specialised to deal in-depth with the technical facets of copyright law. It is not expected that this general law, which deals with the numerous rights of persons with disabilities generally, will dig into the technical details of copyright and address the right of persons with visual impairments to access information. It could thus be argued that relying solely on the CRPD is unlikely to overcome the informational accessibility barriers encountered by persons with visual impairment.

2.2 Earlier WIPO international copyright treaties

The 1967 Stockholm revision to the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) introduced to international copyright law the existing L&Es for exempting from illegality an otherwise rights-infringing reproduction of a person’s work.21 Accordingly, L&Es are granted if the following three requirements are satisfied:

• there must be a specific special case;
• there must not be conflict with the normal exploitation of a work; and
• the L&Es must not unreasonably prejudice the legitimate interests of the author.22

According to a report to WIPO on existing L&Es, a reading of the Berne Convention that provides for sufficient production of materials to meet the needs of persons with visual impairment appears possible, but it is likely that unambiguous drafting is required to comply with the conditions.23 According to the report, an L&Es provision for the rights of persons with visual impairment would likely only work if the use under the exemption does not conflict with the rights holder's existing and potential future markets, or otherwise create economic competition with the rights holder.24 Moreover, prominent rights holders have strongly opposed non-market solutions, such as a treaty-based mandatory copyright exemption for persons with visual impairment, even where the market has failed to develop solutions in any meaningful way.25 Thus, the Berne Convention, including through its revisions, was not able to facilitate the right to access information by persons with visual impairment.

The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention) similarly offers limited opportunities for exempted use of copyrighted material for the public interest. Article 15(1) of the Convention provides treaty-specific exemptions, allowing states to create national exemptions for four types of uses: ‘private use; brief excerpted use for news reporting; ephemeral fixation of broadcast organisation material by that organisation and for its own use only; and scientific and teaching use’. The latter three exceptions, by their terms, do not provide access for persons with visual impairment, and the ‘private use’ exception suggests non-public use incompatible with the general right to access information by persons with visual impairment.26 Furthermore, its scope is too narrow, encompassing only performances, phonograms, and broadcasts to address the rights of persons with visual impairment to access many other literary and artistic works. 

Relatively speaking, because of their recency, the WIPO Performances and Phonograms Treaty (WPPT) and the WIPO Copyright Treaty (WCT) were expected to guarantee the right much better than the Berne and Rome Conventions. However, the L&Es in both the WPPT and the WCT are not different from the three-step test from the Berne Convention.

Article 1(4) of the WCT unequivocally states that ‘contracting parties shall comply with articles 1 to 21 and the Appendix of the Berne Convention’. Furthermore, the reproduction right, as set out in article 9 of the Berne Convention, and the exceptions permitted thereunder, applies fully in the digital environment, particularly to the use of works in digital form.

The WCT, however, confines its L&Es to the rights of public distribution, rental, and communication of literary and artistic works in digital form.27 As a result, by limiting its L&Es to the public distribution, rental, and communication of literary and artistic works, the WCT falls short of fully addressing the right of persons with visual impairment to information in accessible formats better than the Berne Convention.28

The WPPT updates the copyright protections and limitations established in the Rome Convention. It does not require compliance with the preceding Treaty, in this case, the Rome Convention.29 However, this does not improve the realisation of the right to access information by persons with visual impairment, as the only exemption in the WPPT is the same-kind test, which, as noted in the case of the Rome Convention, does not address this problem.

Furthermore, the three-step test is not a mandatory test: states are free to reject copyright L&Es for persons with visual impairments or any other population, regardless of whether those L&Es are statutory or policy-based.30 Thus, although some commentators believe that the three-step test can in fact be the vehicle of meaningful assistance to persons with visual impairment, multilateral IP treaties only minimally support the right of persons with visual impairment to access information in born-accessible or alternative publications.31 Due to all these failures to realise the right of persons with visual impairments to access information, the Marrakesh VIP Treaty was adopted in 2013 and came into effect in 2016.32

2.3 The Marrakesh VIP Treaty

The Marrakesh VIP Treaty is the most recent addition to the collection of international copyright treaties overseen by WIPO. Its major objective is to provide a set of legally required restrictions and exceptions for the benefit of its beneficiaries, who are mostly but not exclusively persons with visual impairment.33 It has a clear humanitarian and social development goal.34

The Treaty calls for the introduction of a uniform set of L&Es to copyright laws by contracting parties to allow for the reproduction, dissemination, and availability of published works in forms made accessible to beneficiaries and the exchange of those works across international borders.35 Published works refer to ‘works in the form of text, notation, and/or associated illustrations, as well as audio books, whether published or otherwise made publicly available in any media’.36

Another important feature of the Treaty is the concept of ‘authorised entities’, which refers to the organisations in charge of making works available, distributing them to beneficiaries, and carrying out cross-border exchange of such works.37 ‘Authorised entities’ are either specifically authorised or ‘recognized’ by the government as entities that provide many functions, including education and information access to beneficiary persons.38 They have the duty to establish and follow their own practices in several areas, including establishing that the persons they serve are beneficiary persons, providing services only to those persons, discouraging unauthorised uses of copies, and maintaining ‘due care’ in handling copies of works.39

The Treaty provides specific rules for both domestic and cross-border L&Es. First, it calls for state parties to stipulate L&Es to domestic copyright law for beneficiary persons.40 Such L&Es govern the rights to reproduce, distribute, and make works publicly available.

Authorised entities may create accessible format copies for a non-profit, which can be distributed through non-commercial lending or electronic communication.41 The prerequisites for this activity include having legal access to the work; making only the changes necessary to make the work accessible; and providing the copies only for use by beneficiaries.42 Beneficiary persons may also make a personal use copy where they have lawful access to an accessible format copy of a work.43

Second, the Treaty mandates that, under certain restrictions, contracting parties must permit the import and export of copies in accessible formats (referred to as cross-border exchange of works).44 In other words, when an accessible format copy may be made in accordance with national law, that accessible copy may also be imported to another contracting party without the rightsholder’s authorisation. In terms of exportation, an authorised entity may distribute or make accessible format copies available to a beneficiary person or another authorised entity in another contracting party. As long as they adhere to their three-step obligations, the Treaty gives contracting parties the discretion to execute its terms while taking into consideration their own legal frameworks and customs, including determinations on ‘fair practices, transactions, or uses’.

However, it cannot be said that the Marrakesh Treaty is a panacea for the problems associated with the right to access information for persons with visual impairment, particularly in least-developed countries that are hardly regarded as an important destination for the development and market of assistive technology. Because the Treaty does not address works without copyright protection, non-copyrightable works may remain inaccessible to persons with visual impairment. Hence, for countries like Ethiopia, it may be necessary to go beyond ratifying the Treaty.

3.1 Reproduction for personal purposes

The first paragraph of article 9(1) of the Proclamation reads:

The owner of copyright cannot forbid the private reproduction of a published work in a single copy by a physical person exclusively for his own personal purposes.

This provision allows a user of copyright material to reproduce a copy of the work without being constrained by copyright considerations. However, only physical persons who are owners of the original copy are allowed to benefit from this L&E provision. Authorised entities - introduced under article 2(c) of Marrakesh VIP Treaty - cannot reproduce published works in accessible format, although they are the owners of the original copy. This means, as beneficiaries of this L&E are physical persons only, authorised entities such as the Ethiopian National Association for the Blind or universities cannot reproduce published works in alternative formats for private consumption by persons with visual impairment.

3.2 Incomplete recognition of the L&Es

Article 11 of the Marrakesh VIP Treaty, in setting general obligations of contracting parties on L&Es, reiterates the three-step test as provided by its preceding WIPO copyright treaties. Accordingly, it states:

Contracting parties may provide for limitations of or exceptions to the rights granted to authors in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

On the contrary, article 9(2)(e) of the proclamation reads:

The provision permitting private reproduction of a published work in a single copy by a physical person exclusively for his own personal purposes does not extend to reproduction which would conflict with or unreasonable harm the normal exploitation of the work or the legitimate interest of the author.

This provision has not included the three-step test in its fullest sense as stated under article 11 of the Treaty; that is, of the three components of the test - the limitation should be limited to certain special cases, it should not conflict with the normal exploitation of the work, and it should not unreasonably prejudice the legitimate interests of the author - the first one, ‘special case’, has been removed. On the other hand, there is no question that persons with visual impairment constitute a ‘special case’ under the first limb of the three-step test. However, with the element of 'special case’ removed from the three-step test, persons with visual impairment cannot claim, whenever legally challenged, the protection extended by this first component. This makes the proclamation directly run afoul of the Marrakesh VIP Treaty.

3.3 Limited application of the L&Es

According to article 4(1)(a) of the Marrakesh VIP Treaty:

Contracting Parties shall provide in their national copyright laws for a limitation or exception to the right of reproduction, the right of distribution, and the right of making available to the public ... to facilitate the availability of works in accessible format copies for beneficiary persons.

As can be understood from this provision, L&Es are not limited to the right of production. It must also be extended to include the right of distribution, and/or making them available to the general public.

On the other hand, as provided under article 9(2)(e) of the Proclamation, the L&Es, aside from incomplete recognition, are limited to the right of reproduction. They do not cover the rights of authors to distribute works and make them available to the public.

Such a narrow scope of L&Es application cannot achieve the desired result of ending or at least reducing the book-famine among persons with visual impairment. It renders concepts of the Marrakesh VIP Treaty such as authorised entities, cross-border exchanges, and the importation and exportation of accessible books inapplicable. It must instead extend its effect - beyond the right of reproduction - to the right of distribution and of making works available to the public, which are core areas of focus for the Marrakesh VIP Treaty - as provided under articles 4(1)(a), (2) and (5). Otherwise, any L&Es provision may hardly serve, while limiting itself to the right of reproduction, to promote the right to access information by persons with visual impairment.

3.4 Limited coverage of works

Pursuant to article 2(a) of Marrakesh VIP Treaty, ‘work’ means ‘literary and artistic works ... in the form of text, notation and/or related illustrations, [and audio books] whether published or otherwise made publicly available in any media’.

As seen from this provision, the Marrakesh Treaty covers works published in paper or electronic copy, online or offline, audio or any other means. The way they are published does not excuse their inaccessibility. The Proclamation, however, reflects a position contrary to this.

Article 3 provides that the Proclamation applies to works published in hard copy. In other words, the Proclamation does not apply to literary and artistic works in electronic copy, audio, online or otherwise published. Thus, the L&Es embodied in the Proclamation, even to the extent of their weakness, do not apply to works published outside of paper. This would make the Proclamation inconsistent with the Treaty, which also covers 'works lawfully made available to the public in different ways other than paper’.

3.5 Computer and mobile applications

Pursuant to articles 9(2)(d) and 14 of the Proclamation, ‘The provision permitting’ private reproduction of a published work in a single copy by a physical person exclusively for his own personal purposes does not extend to reproduction of a computer program except ... ‘single copy reproduction, or adaptation of a computer program’.

In Ethiopia, a computer application is, regardless of its technical quality, a copyrightable subject-matter. Article 2(30) of the Proclamation states: ‘“Work” means a production in the literary, scientific, and artistic fields. It includes ... books, booklets, articles in reviews and newspapers, computer programs.’ As the listing is illustrative, the definition can also include ‘mobile applications’.

Induced by the fact that computer and mobile applications are becoming popular in the market, nowadays, many authors are showing a high tendency to turn their books into applications to sell in the major app stores, including Google Play, iTunes, and Amazon. The applications may not be, however, screen-reader friendly.

On the other hand, although applications are protected subject-matters under article 3 of the Proclamation, the L&E to the right of reproduction under article 9(2)(e) does not apply to an application developer, excepted by article 9(2)(d), to make his work screen-reader friendly; nor permits, without authorisation by the right holder, reverse-engineering or the writing of ‘add-ons’ or ‘scripts’ to modify and make applications screen-reader friendly. What is worse is that the Marrakesh VIP Treaty does not cover literary and artistic works turned into computer or mobile applications in its definition of ‘works’. It is surprising that the Marrakesh VIP Treaty left out computer applications while its predecessor, the WCT, protects computer applications as literary works within the meaning of article 2 of the Berne Convention.46

3.6 Public domain works

Some works, albeit ‘public domain’, may be as important as the copyright-protected ones for persons with visual impairment; hence, whether they are accessible matters a lot. Under article 5(b) of the Proclamation, any official text of a legislative, administrative, or legal nature, as well as official translations thereof, is, for example, non-copyrightable subject-matter.

In addition, a plethora of other literary and artistic works are physically and digitally published and freely available for the public these days. Many of them are, however, inaccessible, if they are written in local languages.

Highly advanced products of assistive technology do not support local languages. For example, the most popular screen-reading software developed by Freedom Scientific, Jaws, is a software solution that allows persons with visual impairment to OCR and read written materials. It does not, however, support the languages of the least developed countries, perhaps due to the low market opportunity. Hence, if a work, despite being in the public domain, is written in local languages and published in an inaccessible format, persons with visual impairment cannot use JAWS or similar other software to OCR and read that work. It is, however, possible to publish those works, from the outset, as born-accessible. Be that as it may, the Proclamation, being a copyright proclamation, does not cover public domain works and obliges publishers or authors to make such works publicly accessible. This is worsened by the fact that Ethiopia does not yet have a comprehensive anti-discrimination law for persons with visual impairment to challenge discrimination and claim the work in an alternative format. Similarly, the Marrakesh VIP Treaty does not cover ‘works’, despite literary and artistic, if they are public domain works. This calls for measures beyond ratifying the Marrakesh VIP Treaty.