Diplomatic Conference to Conclude a Treaty to Facilitate
Access to Published Works by Visually Impaired Persons and Persons with Print
Disabilities
Marrakesh, June 17 to 28, 2013
DRAFT MARRAKESH TREATY TO FACILITATE ACCESS TO PUBLISHED WORKS FOR PERSONS WHO
ARE BLIND, VISUALLY IMPAIRED, OR OTHERWISE PRINT DISABLED
Preamble
The Contracting Parties,
Recalling the principles of
non-discrimination, equal opportunity, accessibility and full and effective
participation and inclusion in society, proclaimed in the Universal Declaration
of Human Rights and the United Nations Convention on the Rights of Persons with
Disabilities,
Mindful of the challenges
that are prejudicial to the complete development of persons with visual
impairments or with other print disabilities, which limit their freedom of
expression, including the freedom to seek, receive and impart information and
ideas of all kinds on an equal basis with others, including through all forms
of communication of their choice, their enjoyment of the right to education,
and the opportunity to conduct research,
Emphasizing the importance of
copyright protection as an incentive and reward for literary and artistic
creations and of enhancing opportunities for everyone, including persons with
visual impairments or with other print disabilities, to participate in the
cultural life of the community, to enjoy the arts and to share scientific
progress and its benefits,
Aware of the barriers of
persons with visual impairments or with other print disabilities to access
published works in achieving equal opportunities in society, and the need to
both expand the number of works in accessible formats and to improve the
circulation of such works,
Taking
into account that the majority of persons with visual impairments or with
other print disabilities live in developing and least-developed countries,
Recognizing that, despite the
differences in national copyright laws, the positive impact of new information
and communication technologies on the lives of persons with visual impairments
or with other print disabilities may be reinforced by an enhanced legal
framework at the international level,
Recognizing
that many Member States have established limitations and exceptions in their
national copyright laws for persons with visual impairments or with other print
disabilities, yet there is a continuing shortage of available works in
accessible format copies for such persons, and that considerable resources are
required for their effort of making works accessible to these persons, and that
the lack of possibilities of cross-border exchange of accessible format copies
has necessitated duplication of these efforts,
Recognizing both the importance
of rightholders’ role in making their works accessible to persons with visual
impairments or with other print disabilities and the importance of appropriate limitations
and exceptions to make works accessible to these persons, particularly when the
market is unable to provide such access,
Recognizing the need to maintain
a balance between the effective protection of the rights of authors and the
larger public interest, particularly education, research and access to
information, and that such a balance must facilitate effective and timely
access to works for the benefit of persons with visual impairments or with
other print disabilities,
Reaffirming the obligations of
Contracting Parties under the existing international treaties on the protection
of copyright and the importance and flexibility of the three-step test for
limitations and exceptions established in Article 9(2) of the Berne Convention
for the Protection of Literary and Artistic Works and other international
instruments,
Recalling the importance of the
Development Agenda recommendations, adopted in 2007 by the General Assembly of
the World Intellectual Property Organization (WIPO), which aim to ensure that
development considerations form an integral part of the Organization’s work,
Recognizing the importance of the
international copyright system and desiring to harmonize limitations and exceptions
with a view to facilitating access to and use of works by persons with visual
impairments or with other print disabilities.
Have agreed as follows:
Article 1
Relation to other Conventions and Treaties
Nothing in this treaty shall
derogate from any obligations that Contracting Parties have to each other under
any other treaties, nor shall it prejudice any rights that a Contracting Party
has under any other treaties.
Article 2
Definitions
For the purposes of this Treaty:
(a) “works” means literary
and artistic works within the meaning of Article 2(1) of the Berne Convention for the Protection of Literary and
Artistic Works, in the form of text, notation and/or
related illustrations, whether published or otherwise made publicly available
in any media;[1]
(b) “accessible format
copy” means a copy of a work in an alternative manner or form which gives a
beneficiary person access to the work, including to permit the person to have
access as feasibly and comfortably as a person without visual impairment or
other print disability. The accessible
format copy is used exclusively by beneficiary persons and it must respect the
integrity of the original work, taking due consideration of the changes needed
to make the work accessible in the alternative format and of the accessibility
needs of the beneficiary persons;
(c) “authorized entity”
means an entity that is authorized or recognized by the government to provide
education, instructional training, adaptive reading or information access to
beneficiary persons on a non-profit basis.
It also includes a government institution or non-profit organization
that provides the same services to beneficiary persons as one of its primary
activities or institutional obligations.[2]
An authorized entity establishes and
follows its own practices:
(i) to establish that the
persons it serves are beneficiary persons;
(ii) to limit to
beneficiary persons and/or authorized entities its
distribution and makingavailable of accessible format copies;
(iii) to discourage the
reproduction, distribution and making available of unauthorized copies; and
(iv) to maintain due care
in, and records of, its handling of copies of works, whilerespecting the
privacy of beneficiary persons in accordance with Article 8.
Article 3
Beneficiary Persons
A beneficiary person is a person
who:
(a) is
blind;
(b) has a visual
impairment or a perceptual or reading disability which cannot be improved to
give visual function substantially equivalent to that of a person who has no
such impairment or disability and so is unable to read printed works to
substantially the same degree as a person without an impairment or disability; or[3]
(c)
is 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;
regardless of any other
disabilities.
Article 4
National Law Limitations and
Exceptions Regarding Accessible Format Copies
1. (a) 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 as provided by the WIPO Copyright Treaty (WCT),
to facilitate the availability of works in accessible format copies for
beneficiary persons. The limitation or
exception provided in national law should permit changes needed to make the
work accessible in the alternative format.
(b) Contracting Parties may also provide a
limitation or exceptionto the right of
public performance to facilitate access to works for beneficiary persons.
2. A Contracting Party may fulfill Article 4(1) for all rights
identified therein by providing a limitation or exception in its national
copyright law such that:
(a) Authorized entities shall be
permitted, without the authorization of the copyright rightholder, to make an
accessible format copy of a work, obtain from another authorized entity an accessible
format copy, and supply those copies to beneficiary persons by any means,
including by non-commercial lending or by electronic communication by wire or
wireless means, and undertake any intermediate steps to achieve those
objectives, when all of the following conditions are met:
(i)
the authorized entity wishing to undertake said activity has
lawful access to that work or a copy of that work;
(ii)
the work is converted to an accessible format copy, which may
include any means needed to navigate information in the accessible format, but
does not introduce changes other than those needed to make the work accessible
to the beneficiary person;
(iii)
such accessible format copies are supplied exclusively to be used
by beneficiary persons; and
(iv)
the activity is undertaken on a non-profit basis;
and
(b) A beneficiary person, or someone
acting on his or her behalf including a primary caretaker or caregiver, may
make an accessible format copy of a work for the personal use of the
beneficiary person or otherwise may assist the beneficiary person to make and
use accessible format copies where the beneficiary person has lawful access to
that work or a copy of that work.
3. A Contracting Party may fulfill Article 4(1) by providing
other limitations or exceptions in its national copyright law pursuant to
Articles 10 and 11.[4]
4. A Contracting Party may confine limitations or exceptions
under this Article to works which, in the particular accessible format, cannot
be obtained commercially under reasonable terms for beneficiary persons in that
market. Any Contracting Party availing
itself of this possibility shall so declare in a notification deposited with
the Director General of WIPO at the time of ratification of, acceptance of or
accession to this Treaty or at any time thereafter.[5]
5. It shall be a matter for national law to determine whether limitations
or exceptions under this Article are subject to remuneration.
Article 5
Cross-Border Exchange of
Accessible Format Copies
1. Contracting Parties shall provide that if an accessible
format copy is made under a limitation or exception or pursuant to operation of
law, that accessible format copy may be distributed or made available by an
authorized entity to a beneficiary person or an authorized entity in another
Contracting Party.[6]
2. A Contracting Party may fulfill Article 5(1) by providing a
limitation or exception in its national copyright law such that:
(a) authorized entities shall be
permitted, without the authorization of the rightholder, to distribute or make
available for the exclusive use of beneficiary persons accessible format copies
to an authorized entity in another Contracting Party; and
(b) authorized entities shall be
permitted, without the authorization of the rightholder andpursuant to Article 2,
to distribute or make available accessible format copies to a beneficiary
person in another Contracting Party;
provided that prior to the
distribution or making available the originating authorized entity did not know
or have reasonable grounds to know that the accessible format copy would be
used for other than beneficiary persons.[7]
3. A Contracting Party may fulfill Article 5(1) by providing other
limitations or exceptions inits national copyright law pursuant to Articles5(4),
10 and 11.
4.(a) When an authorized entity
in a Contracting Party receives accessible format copies pursuant to Article 5(1)
and that Contracting Party does not have obligations under Article 9 of the
Berne Convention, it will ensure, consistent with its own legal system and
practices, that the accessible format copies are only reproduced, distributed
or made available for the benefit of beneficiary persons in that Contracting Party’s jurisdiction.
(b)The distribution and making available of accessible format
copies by an authorized entity pursuant to Article 5(1) shall be limited to
that jurisdiction unless the Contracting Party is a Party to the WIPO Copyright
Treaty or otherwise limits limitations and exceptions implementing this Treaty
to the right of distribution and the right of making available to the public to
certain special cases which do not conflict with a normal exploitation of the
work and do not unreasonably prejudice the legitimate interests of the
rightholder.[8][9]
(c) Nothing in this Article affects the determination of what
constitutes an act of distribution or an act of making available to the public.
5. Nothing in this Treaty shall be used to
address the issue of exhaustion of rights.
Article 6
Importation of Accessible Format
Copies
To the extent that the national
law of a Contracting Party would permit a
beneficiary person, someone acting on his or her behalf, or an authorized
entity, to make an accessible format copy of a work, the national law of that Contracting Party shall also permit
them to import an accessible format copy for the benefit of beneficiary
persons,without the authorization of the rightholder.[10]
Article 7
Obligations Concerning
Technological Measures
Contracting Parties shall take appropriate measures, as necessary,
to ensure that when they provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures, this
legal protection does not prevent beneficiary persons from enjoying the
limitations and exceptions provided for in this Treaty.[11]
Article 8
Respect for Privacy
In the implementation of the limitations and exceptions provided
for in this Treaty, Contracting Parties shall endeavor to protect the privacy
of beneficiary persons on an equal basis with others.
Article 9
Cooperation to Facilitate Cross-Border Exchange
1. Contracting Parties shall endeavor to foster
the cross-border exchange of accessible format copies by encouraging the
voluntary sharing of information to assist authorized entities in identifying
one another. The International Bureau of
WIPO shall establish an information access point for this purpose.
2. Contracting Parties
undertake to assist their authorized entities engaged in activities under
Article 5 to make information available regarding their practices pursuant to
Article )2, both through the sharing of information among authorized entities, and
through making available information on their policies and practices, including
related to cross-border exchange of accessible format copies, to interested
parties and members of the public as appropriate.
3. The International Bureau of WIPO is invited
to share information, where available, about the functioning of this Treaty.
4. Contracting Parties recognize the importance of international
cooperation and its promotion, in support of national efforts for realization
of the purpose and objectives of this Treaty.[12]
Article 10
General Principles on Implementation
1. Contracting Parties undertake to adopt the measures necessary
to ensure the application of this Treaty.
2. Nothing shall prevent Contracting Parties from determining the
appropriate method of implementing the provisions of this Treaty within their
own legal system and practice.[13]
3. Contracting Parties may fulfill their rights and obligations
under this Treaty through limitations or exceptions specifically for the
benefit of beneficiary persons, other limitations or exceptions, or a
combination thereof, within their national legal system and practice. These may
include judicial, administrative or regulatory determinations for the benefit
of beneficiary persons as to fair practices, dealings or uses to meet their
needs consistent with the Contracting Parties’ rights and obligations under the
Berne Convention, other international treaties, and Article 11.
Article 11
General Obligations on Limitations and Exceptions
In adopting measures necessary to ensure the application of this
Treaty, a Contracting Party may exercise the rights and shall comply with the
obligations that that Contracting Party has under the Berne Convention, the
Agreement on Trade-Related Aspects of Intellectual Property Rights and the WCT,
including their interpretative agreements so that:
1. in accordance
with Article 9(2) of the Berne Convention, a Contracting Party may permit the
reproduction of works in certain special cases provided that such reproduction
does not conflict with a normal exploitation of the work and does not
unreasonably prejudice the legitimate interests of the author;
2. in accordance
with Article 13 of the Agreement on Trade-Related Aspects of Intellectual
Property Rights, a Contracting Party shall confine limitations or exceptions to
exclusive rights to certain special cases which do not conflict with a normal
exploitation of the work and do not unreasonably prejudice the legitimate
interests of the rightholder;
3. in accordance
with Article 10(1) of the WIPO Copyright Treaty, a Contracting Party may
provide for limitations of or exceptions to the rights granted to authors under
the WCT in certain special cases, that do not conflict with a normal
exploitation of the work and do not unreasonably prejudice the legitimate
interests of the author;
4. in accordance
with Article 10(2) of the WIPO Copyright Treaty, a Contracting Party shall
confine, when applying the Berne Convention, any limitations of or exceptions
to rights to certain special cases that do not conflict with a normal
exploitation of the work and do not unreasonably prejudice the legitimate interests
of the author.
Article 12
Other Limitations and Exceptions
1. Contracting Parties
recognize that a Contracting Party may implement in its national law other
copyright limitations and exceptions for the benefit of beneficiary persons
than are provided by this Treaty having regard to that Contracting Party’s
economic situation, and its social and cultural needs, in conformity with that
Contracting Party's international rights and obligations, and in the case of a
least-developed country taking into account its special needs and its
particular international rights and obligations and flexibilities thereof.
2. This Treaty is without prejudice to other limitations and exceptions
for persons with disabilities provided by national law.
Article 13
Assembly
1 (a) The Contracting Parties shall have an
Assembly.
(b) Each Contracting Party shall be represented
in the Assembly by one delegate who may be assisted by alternate delegates,
advisors and experts.
(c) The expenses of each delegation shall be
borne by the Contracting Party that has appointed the delegation. The Assembly may ask WIPO to grant financial
assistance to facilitate the participation of delegations of Contracting
Parties that are regarded as developing countries in conformity with the
established practice of the General Assembly of the United Nations or that are
countries in transition to a market economy.
2 (a) The Assembly shall deal with matters
concerning the maintenance and development of this Treaty and the application
and operation of this Treaty.
(b) The Assembly shall perform the function
allocated to it under Article 15 in respect of the admission of certain
intergovernmental organizations to become party to this Treaty.
(c) The Assembly shall decide the convocation
of any diplomatic conference for the revision of this Treaty and give the
necessary instructions to the Director General of WIPO for the preparation of
such diplomatic conference.
3 (a) Each
Contracting Party that is a State shall have one vote and shall vote only in
its own name.
(b) Any
Contracting Party that is an intergovernmental organization may participate in
the vote, in place of its Member States, with a number of votes equal to the
number of its Member States which are party to this Treaty. No such intergovernmental organization shall
participate in the vote if any one of its Member States exercises its right to
vote and vice versa.
4 The Assembly
shall meet upon convocation by the Director General and, in the absence of
exceptional circumstances, during the same period and at the same place as the
General Assembly of WIPO.
5 The Assembly shall endeavor to take its
decisions by consensus and shall establish its own rules of procedure,
including the convocation of extraordinary sessions, the requirements of a
quorum and, subject to the provisions of this Treaty, the required majority for
various kinds of decisions.
Article 14
International Bureau
The International
Bureau of WIPO shall perform the administrative tasks concerning this Treaty.
Article 15
Eligibility for Becoming Party to the Treaty
(1) Any Member State
of WIPO may become party to this Treaty.
(2) The Assembly may
decide to admit any intergovernmental organization to become party to this
Treaty which declares that it is competent in respect of, and has its own
legislation binding on all its Member States on, matters covered by this Treaty
and that it has been duly authorized, in accordance with its internal
procedures, to become party to this Treaty.
(3) The European
Union, having made the declaration referred to in the preceding paragraph at
the Diplomatic Conference that has adopted this Treaty, may become party to
this Treaty.
Article 16
Rights and Obligations under the Treaty
Subject to any specific provisions to the contrary in this
Treaty, each Contracting Party shall enjoy all of the rights and assume all of
the obligations under this Treaty.
Article 17
Signature of the Treaty
This Treaty shall be open for signature at the Diplomatic
Conference in Marrakesh, and thereafter at the headquarters of WIPO by any
eligible party for one year after its adoption.
Article 18
Entry into Force of the Treaty
This Treaty shall enter into force three months after 20
eligible parties referred to in Article 15
have deposited their instruments of ratification or accession.
Article 19
Effective Date of Becoming Party to the Treaty
This Treaty shall bind:
(i)
the 20 eligible parties referred to in Article 18, from the
date on which this Treaty has entered into force;
(ii)
each other eligible party referred to in Article 15, from the
expiration of three months from the date on which it has deposited its
instrument of ratification or accession with the Director General of WIPO;
Article 20
Denunciation of the Treaty
This Treaty may be
denounced by any Contracting Party by notification addressed to the Director
General of WIPO. Any denunciation shall
take effect one year from the date on which the Director General of WIPO
received the notification.
Article 21
Languages of the Treaty
(1) This Treaty is
signed in a single original in English, Arabic, Chinese, French, Russian and
Spanish languages, the versions in all these languages being equally authentic.
(2) An official text in any
language other than those referred to in paragraph (1) shall be established by
the Director General of WIPO on the request of an interested party, after
consultation with all the interested parties.
For the purposes of this paragraph, “interested party” means any Member
State of WIPO whose official language, or one of whose official languages, is
involved and the European Union, and any other intergovernmental organization
that may become party to this Treaty, if one of its official languages is
involved.
Article 22
Depositary
The Director General
of WIPO is the depositary of this Treaty.
Done in Marrakesh on
the 27th day of June, 2013
[End of document]
[1] Agreed statement concerning Article 2(a):For
the purposes of this Treaty, it is understood that this definition includes
such works in audio form, such as audiobooks.
[2] Agreed statement concerning Article
2(c): For the purposes of this Treaty,
it is understood that “entities recognized by the government” may include
entities receiving financial support from the government to provide education,
instructional training, adaptive reading or information access to beneficiary
persons on a non-profit basis.
[3] Agreed statement concerning Article
3(b): Nothing in this language implies
that “cannot be improved” requires the use of all possible medical diagnostic
procedures and treatments.
[4]Agreed Statement concerning Article
4(3): It is understood that this paragraph
neither reduces nor extends the scope of applicability of limitations and
exceptions permitted under the Berne Convention, as regards the right of
translation, with respect to persons with visual impairments or with other
print disabilities.
[5]Agreed Statement concerning
Article 4(4): It is understood that a
commercial availability requirement does not prejudge whether or not a
limitation or exception under this Article is consistent with the three-step
test.
[6]Agreed statement concerning
Article 5(1): It is further understood
that nothing in this Treaty reduces or extends the scope of exclusive rights
under any other treaty.
[7] Agreed statement concerning
Article 5(2): It is understood that, to
distribute or make available accessible format copies directly to a beneficiary
person in another Contracting Party, it may be appropriate for an authorized entity
to apply further measures to confirm that the person it is serving is a
beneficiary person and to follow its own practices as described in Article 2.
[8]
Agreed statement concerning Article 5(4)(b):
It is understood that nothing in this Treaty requires or implies that a
Contracting Party adopt or apply the three-step test beyond its obligations
under this instrument or under other international treaties.
[9]Agreed statement concerning Article 5(4)(b):It
is understood that nothing in this Treaty creates any obligations for a
Contracting Party to ratify or accede to the WCT or to comply with any of its
provisions and nothing in this Treaty prejudices any rights, limitations and
exceptions contained in the WCT.
[10] Agreed statement concerning Article
6: It is understood that the Contracting
Parties have the same flexibilities set out in Article 4 when implementing
their obligations under Article 6.
[11] Agreed statement concerning
Article 7: It is understood that authorized entities, in various circumstances,
choose to apply technological measures in the making, distribution and making
available of accessible format copies and nothing herein disturbs such
practices when in accordance with national law.
[12]Agreed statement
concerning Article 9: It is understood
that Article 9 does not imply mandatory registration for authorized entities
nor does it constitute a precondition for authorized entities to engage in
activities recognized under this Treaty;
but it provides for a possibility for sharing information to facilitate
the cross-border exchange of accessible format copies.
[13] Agreed Statement concerning Article
10(2): It is understood that when a work
qualifies as a work under Article 2, including such works in audio form, the
limitations and exceptions provided for by this Treaty apply mutatis mutandis to related rights as
necessary to make the accessible format copy, to distribute it and to make it
available to beneficiary persons.
댓글 없음:
댓글 쓰기