#Marrakech Treaty – Ideas in ALL

Research Stream: Social Structures

Author: Delia Ferri, Principal Investigator, Protecting the Right to Culture of Persons with Disabilities and Enhancing Cultural Diversity in EU Law: Exploring New Paths (DANCING)

The adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty) by the World Intellectual Property Organisation (WIPO) on 27 June 2013 has been heralded as historic and groundbreaking by scholars, policy makers and disability activists alike. In fact, the Marrakesh Treaty is the first treaty entirely based on exceptions to copyright, and the first WIPO treaty to address the rights of persons with print disabilities to access cultural material.

In a nutshell, the Marrakesh Treaty requires Parties to enact a copyright exception in their national legislation to facilitate the availability of works in accessible format copies for the benefit of blind persons, visually impaired people, persons with a perceptual or reading disability and those who are ‘otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading; that cannot access effectively printed material’. Enthusiasm has also surrounded the EU ratification of the Marrakesh Treaty and the ensuing adoption of the so-called ‘Marrakesh Package’, which is comprised of Directive (EU) 2017/1564 and of Regulation (EU) 2017/1563. However, approximately seven years after the adoption of the Marrakesh package, its usefulness and timeliness has been called into question. Alongside its inherent limitations, already commented upon in previous articles, the coming to effect (in June 2025) of accessibility requirements provided for in the Directive (EU) 2019/882 on the accessibility requirements for products and services, better known as European Accessibility Act (EAA), has raised doubts as to whether the Marrakesh Package has still a role to play in supporting access to printed material for persons with disabilities. This blog post briefly highlights, on foot of previous research and qualitative interviews conducted within the remit of the project DANCING, funded by the European Research Council, why the EAA and the Marrakesh Package need to be seen as complementary, and pieces of what I have elsewhere called the ‘accessibility jigsaw’.

Professor Delia Ferri smiling and wearing black

The ‘Marrakesh Package’ in a Nutshell

The Marrakesh Directive, widely commented upon by copyrights scholars, introduces a mandatory exception to the harmonised rights of authors, empowering beneficiaries (i.e. people who are blind, have a visual impairment, people that have a perceptual or reading disability and people who are otherwise unable, due to a physical disability, to hold or manipulate a book or to focus or move their eyes to the extent that would be required for reading) and authorised entities (AEs) to convert a printed work into an accessible format without prior authorisation of the copyright holder. In substance, the Marrakesh Directive allows, without prior authorization of the copyright holder, conversion of existing printed material (books, newspapers, magazines, sheet music, and related illustrations and any other kind of written works, regardless of the media in which they are made available) in accessible formats (e.g. the creation of an audiobook from a printed volume) and the reproduction of accessible format copies (making additional copies of books in Braille). The Regulation, which is complementary to the Directive, provides for a copyright exception allowing for the cross-border exchange between EU Member States and Non-EU Member States who are party to the Marrakesh Treaty of accessible format copies of certain works that are ordinarily protected by copyright.

The EAA and Accessibility of Printed Material

Without engaging in the technicalities of the EAA, which I have commented on generally in an article published in the European Law Review in 2020, for the purpose of this brief blog, it suffices to highlight that it provides for a wide obligation for publishers to address accessibility concerns ex ante and produce accessible e-books. In fact, it has been highlighted that, when it comes to ebooks ‘the EAA is very thorough’ as it ‘takes into account the whole value chain from book production to consumption’. Although the EAA was enacted in 2019 and should have been transposed by the Member States by 2022, accessibility obligations will come into effect from 28 June 2025.

The EAA and the Marrakesh Package

The imminent coming into effect of EAA accessibility obligations has prompted some publishers to suggest that, in fact, the Marrakesh Directive in particular has lost, at least partially, its relevance. The Fédération des Editeurs européens highlights that the EAA is “a game changer in terms of the commercial availability of accessible books” and the enhanced availability of commercially available accessible copies should prompt for a careful approach in terms of disability copyright exceptions which should be reflected in any revision. The Fédération des Editeurs européens suggests that AEs should be able to “focus even more on cooperation with stakeholders, to avoid duplication and conflict with the commercial exploitation” of works, and similar arguments are put forward by the French Publishers Association (SNE). However, as highlighted in the recent “Study to support the evaluation of Directive (EU) 2017/1564 and of Regulation (EU) 2017/1563, which implement into EU law the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled”, the EAA and the Marrakesh Package diverge in their material and personal scope and do not clash or overlap. The EAA in fact will improve availability of ‘born-accessible’ works. However, it will only cover one format, that of e-books, and only apply to works published in digital formats after the cut-off date of 28 June 2025. Notably, the EAA has also a different personal scope than the Marrakesh Package. While the EAA covers people with disabilities, meaning that ebooks will need to be accessible to all people with disabilities (not just people with print disabilities). Further, given that the EAA does not apply to micro-enterprises, it substantially exempts small publishing houses from its obligations.

The qualitative research conducted in the DANCING project from the perspective of organisation of persons with disabilities further highlights that the EAA, in spite of its importance to support access of people with disabilities to printed material, neither diminishes nor hampers the relevance of the Marrakesh exception to copyright, which needs to be applied consistently. In particular, qualitative data collected through 10 semi-structured interviews with umbrella disability organisations active at the EU level – designed, deployed and conducted between June 2023 and January 2024[1] – revealed the need to fully and consistently apply the Marrakesh copyright exception and confirmed the importance of the Marrakesh Treaty and of the EU legislation transposing it. A thematic analysis ‘a la’ Braun and Clarke, unveiled that persons with disabilities do see the Marrakesh package as ‘one of the key initiatives from the EU on access to culture for persons with disabilities’ (NGO/OPD_1). One participant further added:

we have heard from certain industry that since now we have the European Accessibility Act that maybe the Marrakesh Treaty is not needed and that is entirely not true… Because I mean even if the Accessibility Act cover ebooks, which are important for access to culture obviously and education, this doesn’t mean that the Marrakesh Treaty is not needed… [by contrast it is essential] to have accessible formats specifically designed for persons with disabilities such as braille, ebooks, DAISY, you know, easy to read books etc. So we see that some industry players are using the Accessibility Act to say, hey now the Marrakesh Treaty is not needed anymore. And that is obviously not true… (NGO/OPD_1)

Another interviewee suggested that

…the [Marrakesh Package] have had a very significant impact and not even fully felt yet …. and I know we have been working a lot with national organisation[s] for blind people… around access to increasing access to alternative formats and … with […] publishers around making books accessible in alternative formats so if you need a digital version that you can listen to with your text to speech that you can get that really easily and quickly. Which is, I think, such a transformation from the past (NGO/OPD_9)

This tallies with the consideration that digital publishing is still relatively underdeveloped and uneven across the EU. Thus, regardless of the different scope of the two acts, the Marrakesh package is also perceived as essential because of existing accessibility shortcomings in the publishing.As one interviewee suggested that ‘[n]ot all the industries are on top of things when it comes to accessibility…’ (NGO/OPD_6). Interviewees also confirmed, in line with previous research, that the Marrakesh Package has stimulated access to, and enhanced availability of, printed material in accessible formats. Such impact is destined to remain even after June 2025.

*This blog post is a short dissemination output of the project entitled ‘Protecting the Right to Culture of Persons with Disabilities and Enhancing Cultural Diversity through European Union Law: Exploring New Paths – DANCING’ which commenced in September 2020 (https://ercdancing.maynoothuniversity.ie/). This project has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (Grant Agreement No 864182). It reflects only the author’s views and does not necessarily reflect those of the European Union or the ERC. I am grateful to Dr. Ann Leahy and Ms Eva Krolla for their support in the data collection process and in carrying out the interviews. I also wish to acknowledge with thanks the contributions of interview participants.

[1] The project encompassed a wide set of interviews. This particular dataset comes from 10 interviews with representatives of umbrella non-governmental organisations (NGOs) working on disability issues at the EU level and organisations of people with disabilities (OPDs). For the purpose of this research, OPDs were identified according to the definition proffered by the CRPD Committee in its General Comment No. 7. The CRPD Committee ‘considers that organizations of persons with disabilities should be rooted, committed to and fully respect the principles and rights recognized in the Convention. Ethical approval was obtained by the relevant Maynooth Ethics Committee.

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