Marrakesh Treaty Implementation: Making the Promise of the Treaty a Reality Michele Woods Director Copyright Law Division Copyright and Creative Industries Sector ICEVI Day Orlando, Florida August 22, 2016

MVT Progress Toward Entry Into Force 20 ratifications/accessions needed for entry into force achieved on June 30, 2016: Argentina, Australia, Brazil, Canada, Chile, Democratic People’s Republic of Korea, Ecuador, El Salvador, Guatemala, India, Israel, Mali, Mexico, Mongolia, Paraguay, Peru, Republic of Korea, Singapore, United Arab Emirates, and Uruguay Date of entry into force: September 30, 2016

Core Marrakesh Treaty Objectives Limitations and exceptions treaty Two overarching requirements: Requires parties to adopt national law limitations and exceptions to facilitate access to formats of works accessible to persons who are blind, visually impaired, or print disabled Provides for the cross-border transfer of accessible-format works in order to increase efficiency and avoid duplication of effort

National Law is Key Even for Transfer Across Borders National law limitations and exceptions are key Ratification without national law may not be enough National laws determine whether cross-border transfer is possible Stakeholders want certainty

What is WIPO Doing? Marrakesh Secretariat activities: Regional MVT programs for copyright officials Regional workshops on implementation with stakeholder organizations/common language groups Legislative assistance to Member States Information point on MVT Practical Implementation Projects: ABC After September 30: Marrakesh Union and Assembly

(1) Sample Analysis: Impact of Marrakesh Treaty on ABC Book Service Basic Question: When will it no longer be necessary to clear (obtain a free license) for works for exchange on ABC Book Service platform Direct effect on activities in countries that are treaty members with legislation in place Indirect implications on all participants in ABC Book Service Member Countries with ABC Book Service Participating Libraries: Australia, Canada and Brazil (two have commercial availability and one does not have a law)

(2) Sample Analysis: Impact of Marrakesh Treaty on ABC Book Service Currently obtains permissions What happens on September 30? Need to analyze combinations of senders and receivers to see what benefits the Treaty can bring Do the analysis once and create transfer rules

Cross Border Transfer Analysis Topics to consider: Treaty membership Existence and text of national law Interaction of national laws – do they speak to each other? Any special considerations (e.g. other treaty memberships; commercial availability; remuneration) Hybrid model for forseeable future– some countries have ratified and some have not

(1) What About the Three-Step Test? Limitations and exceptions should be compatible with the TST The three steps: Certain special cases Does not conflict with normal exploitation of the work Does not unreasonably prejudice the legitimate interests of the author/right holder

(2) What About the Three-Step Test? Basically the TST tries to avoid interference with the marketplace Book famine = Marketplace failure Advice for non-Berne members or the few countries that do not have TRIPS IP obligations AND are not members of the WCT: include the TST language in your limitation or exception

What About Commercial Availability? Remember the specific format needed has to be available Commercial availability = We really mean it about the TST! May be a narrower definition of “certain special cases” and a clarification of “normal exploitation of the work” Positive side: Gives some certainty Consider preparing guidelines and encouraging governments to adopt clear regulations for AEs Celebrate if all works are “born accessible” in all formats

(1) Does My Country Really Need to Join the Marrakesh Treaty? You Can Guess the Answer! Reasons Given: The CRPD is enough The Treaty should do more/is not perfect National L&E is enough Treaty allows nationals to receive works without membership No resources for implementation

(2) Does My Country Really Need to Join the Marrakesh Treaty? Real results – more books available – require more treaty members Political reason to join: mobilizing political will to address book famine Practical reasons to join: Achieving efficiencies in production of works Creating networks based on language/region/subject matter/type of work Achieving scale to make a significant difference Measurable impact and results!

Thank you! www.wipo.int/copyright Michele.Woods@wipo.int