When the Marrakesh Treaty was agreed over 12 years ago, IFLA celebrated alongside the World Blind Union and partners. The Treaty promised to offer a way to remove unnecessary copyright barriers to the making and sharing of books in accessible formats, and so to help end the book famine for persons with print disabilities. 

Since then, the Treaty has seen a very impressive take up in terms of the number of countries joining, through ratification or accession. IFLA has tracked this – and accompanying laws, via our Marrakesh Monitoring Reports.

These Reports highlight a key point – that there is strong diversity in how governments which have joined Marrakesh have subsequently acted to make it a reality. 

In particular, it has become clear that there are a number of ways in which it is possible to undermine the goals and intent of the Marrakesh Treaty, ultimately limiting  the progress of access to information than would otherwise be possible.

This article highlights examples from countries that are arguably getting Marrakesh implementation wrong. The list below illustrates provisions (or a lack of provisions) to avoid because they undermine the purpose of the treaty and create barriers to access for people with disabilities..

Create registration obligations and provide no way of fulfilling them

A particularly frustrating barrier to implementation has been where laws have set out that authorised entities need to be registered in order to use Marrakesh provisions, but then there is no way of registering. 

This appears to be the case in Brazil, where libraries, through the Brazilian Federation of Library Associations (FEBAB), have repeatedly called on the relevant authorities to reopen the registration system for authorised entities under the Marrakesh Treaty. Although the system was briefly open following the enactment of national regulations, only five institutions were formally recognised before it was closed, and it has remained inaccessible for new applications since at least 2023. 

This prolonged and unjustified suspension has created a chilling effect on libraries wishing to serve their communities through the  production and exchange of accessible-format works.

Similarly in Argentina, libraries are still awaiting a regulation to establish a registry, despite the relevant primary legislation having been passed. 

Narrow down the definition of an authorised entity

Closely linked to the concept of a registry above, is the idea that only certain institutions and libraries should count as authorised entities. The Marrakesh Treaty does not establish any requirements for authorised entities around registration, other than that institutions be  recognised as a provider of education, training, adaptive reading or access to information for beneficiaries to count. 

While it may  be easier to have a list of authorised entities, there is no requirement and it may have the effect of limiting the number of service providers, and place an  additional burden on institutions. 

Oblige supplementary payments to use the Treaty’s provisions

The Marrakesh Treaty includes an optional provision for  remuneration of rightholders. This non-compulsory clause was added in order to secure support during negotiations, but undermines the Treaty’s purpose by allowing the payment of a royalty for an inaccessible work, and creates a financial and administrative burden, ultimately drawing resources away services to persons with disabilities. 

In Germany, for example, a fee of at least €15 is charged for each transfer of a book for each individual format. Fees (approx. 15 cents) are also charged for each download or stream of a book. Additionally, fees are charged for obtaining books from other German-speaking countries and for borrowing them. This leads to considerable costs, which inevitably result in a decline in purchases and the range of services offered. 

Implement a commercial availability check

Another possibility in the Treaty, included as a compromise but which can significantly weaken its impact, is the fact that governments can require a commercial availability check for a work in an accessible format, when the very purpose of the Marrakesh Treaty was to address a market failure. 

A commercial availability check is unnecessary – libraries will buy books in accessible formats where they can, as it is far more cost effective to purchase the work than produce it in accessible format. Yet Canada has introduced such a provision, and indeed even requires a second check when exporting books. It is burdensome to expect a library to conduct a search in a foreign market and be 100% sure that a book is not available in a given format there. Often the information simply is not available. Such provisions therefore create unacceptable liability, chilling the sharing of books. 

Ratify or accede to the Treaty, but then do nothing

Finally, according to our most recent monitoring report over 50 countries joined Marrakesh, but have not yet taken action to adapt national legislation. While in some cases international law may have direct effect, it is not certain that libraries or organisations for persons with print disabilities will be ready to take the risk of following one law over another. 

For example, a recent piece from Bangladesh highlights how delays in reforming domestic copyright laws, coupled with underinvestment, have meant that three years on from ratifying the Treaty, persons with print disabilities are still waiting for change. Similarly in South Africa, despite a judgement from the Constitutional Court, the necessary reforms to implement the Treaty are still being held up.

 

The Marrakesh Treaty is a success story – a key step in international law to uphold the right of access to information and research, as well as participation in cultural life for persons with print disabilities. 

However, it is also an illustration of the fact that international law alone will not solve problems unless national governments follow the direction and spirit of the Marrakesh Treaty in their implementation. If they do, we will realise fully the potential of Marrakesh to end the book famine.