1. 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

2. 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

3. 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

4. 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

5. 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

6. (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)

7. (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

8. 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

9. (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

10. (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

11. 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

12. (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

13. (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!

14. Thank you!