WHY ITALY SHOULD SUPPORT SWIFT AND EFFECTIVE RATIFICATION OF THE MARRAKESH TREATY
Vatican Representative Archbishop Tomasi Speaking at WIPO General Assembly on IPR and Marrakesh Treaty
"E ricorda che l'obiettivo primario della nuova conoscenza è il servizio del bene comune della comunità umana.
“Questo bene comune deve essere servito nella sua pienezza, non secondo una visione riduzionista subordinata solo al vantaggio di alcuni; piuttosto, deve fondarsi su una logica che porta all’accettazione di una responsabilità comprensiva. «Il bene comune corrisponde alla più alta delle inclinazioni umane ma è un bene molto difficile da ottenere, poiché richiede l’abilità e lo sforzo costanti di ricercare il bene degli altri come se fosse il proprio bene. La distribuzione dei beni creati che, come ogni persona perspicace sa, oggi è in travaglio tra i mali più grandi a causa della grande disparità tra i pochi estremamente ricchi e i molti privi di beni, deve essere riportata e conformata in modo efficace alle norme del bene comune, vale a dire della giustizia sociale».
(“It recalls that the primary goal of new knowledge is the service of the common good of the human community. This common good must be served in its fullness, not according to a reductionist vision that is subordinated by some people only to their advantage; rather, it is to be based on a logic that leads to the acceptance of greater responsibility. The common good corresponds to the highest of human inclinations. The distribution of creative goods as we all know is done under the conditions of the worst evil due to the great disparity between the minority of extremely rich and the countless poor, which should be brought into conformity with the norms of the common good, social justice.”)
Three years ago an international binding agreement was reached in Marrakesh that was an historic landmark: for the first time a treaty was agreed upon that combined human rights and copyright, that placed the common good ahead of the economic advantage of any particular group. This victory of millions of blind and other visually-impaired persons was not easy and it took over 5 years to overcome the opposition of those who only sought to protect the narrow interests of special interest groups with fundamentalist ignominous positions that expressed a great insensitivity toward one of the most marginalized and poor populations in the world. Today we ask the Italian Government to give practical support for ratification that is a moral position of basic justice or at least to support ratification from an ethic of compassion.
This is not about “finding a balance” between the “book famine” of blind persons and the rights of copyright holders, just like there can be no “balance” between someone starving and the overconsumption of the obese, or “the balance” of the need of a poor patient for a life-saving medicine and the profit margins of a pharmaceutical company. This is about justice.
A number of EU countries, including Italy have fought against this Treaty for years, in WIPO, in EU and now, according to all observers is one of the large countries stalling ratification and implementation by forming part of a blocking minority in the Council. Sadly, Italy supported suspending the ratification process in the EU Council. This opposition has been based on unsubstantiated and unpublished excuses based on undisclosed political and special interest reasons that have nothing to do with the common good of access to culture, knowledge and education of the visually-impaired. It is very surprising that the Italian Parliament has never discussed what its government is doing in Geneva or Brussels nor has the Italian Government given any explanation.
Nonostante le molte domande e le trattative, il governo italiano non ha mai spiegato pubblicamente le ragioni per le loro posizioni. A volte, Il disprezzo peggiore è il silenzio.
On the contrary, we would like to remind you of the “profound indignation” expressed by the European Parliament in its resolution adopted on February 3rd , 2016 in reaction to the prolonged delay in EU ratification of the “Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities” (the text of which was agreed upon by the international community and the EU in June, 2013).
HYPERLINK "http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+MOTION+B8-2016-0168+0+DOC+XML+V0//EN" http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+MOTION+B8-2016-0168+0+DOC+XML+V0//EN
Tre Punti Chiave a favore del Trattato:
1. È utile a molti e non fa male a nessuno. Non ci sono prove che facili la pirateria in quanto il trasferimento di opere avverrebbe attraverso le organizzazioni di non vedenti. Attualmente milioni di persone sono in attesa di avere la possibilità di prendere a prestito i libri oltre i confini grazie al Trattato.
2. Quello che va bene a casa propria va bene a livello universale. Se esistono delle deroghe nazionali che si applicano ai non vedenti, perché non applicarle anche a livello internazionale? Si tratta di una questione di etica categorica.
3. Il mondo intero sta ratificando. Il Trattato entrerà in vigore presto ma senza l'Italia e senza l'Unione europea. Questo è una vergogna perché c’è una grande contraddizione: dove i libri ci sono, il trattato non è ratificato; dove il Trattato lo è, i libri non ci sono. Non è logico!
Sadly Italy has been one of the EU member states that has participated in the minority blockade. It is inexplicable that the present Italian Government has hidden behind the total lack of transparency of the EU Council to not reveal its positions nor to give any legal justification for not accepting EU exclusive competence over this issue against the opinion of all official EU legal services and all legal scholars.
Council Statement: HYPERLINK "http://www.statewatch.org/news/2015/apr/eu-council-marrakesh-treaty-guidance-7321-15.pdf" http://www.statewatch.org/news/2015/apr/eu-council-marrakesh-treaty-guidance-7321-15.pdf
Two separate issues are dealt with: how to put Marrakesh in to EU law and how to ratify the Treaty
We are facing two issues put forth by EU Member States: “the appropriate sequence of the implementation of the Marrakesh Treaty” and “the appropriate legal basis for the decision, in conjunction with the question of competence (exclusive versus shared)” If it was shared it could take over 10 years to ratify.
According to the Council and Italy the Treaty cannot be implemented without changes in EU legislation. The Council presents no legal arguments for its position while the Commission has. It criticizes the Commission harshly for not presenting a legislative proposal in last year and a half and for presenting “vague proposals that lack legal certainty.” This is a blame game, a political ping-pong that wastes time and diverts attention from ratification. Three years later and finally we have a EU draft legislation in form of a Directive and a Regulation for the Marrakesh Treaty.
I am pleased to announce that the proposal for implementation into EU law of the Marrakesh Treaty has been sent today by the Copyright Unit of the European Commission for “inter-service consultation” which means for comments from different European Commission departments dealing with disabilities, internal market and culture. This proposal reflects very closely the Treaty text without any controversial additions that could mean barriers to fulfilling the Treaty´s potential. We shall be vigilant to assure there are no major objections nor changes from other EC departments.
If there are no unexpected delays the final proposal will be presented to the European Parliament on September 21st for debate and for possible amendments on the same day that it presents its “copyright reform package” and other proposals related to the Digital Single Market. It is of upmost importance that in this legislative process that new restrictive and limiting elements are not added to the text by the European Parliament or by EU member states in the Council.
The European Court of Justice: The ECJ will give its opinion on the exclusive EU competence to ratify the Treaty in October or November. According to reliable information the ECJ will most probably confirm the exclusive competence of the EU and reject the claims of a few EU member states against EU competence. This would clear the path for swift ratification and implementation. It is a great pity some EU member states forced this consultation which has delayed the whole process for over a year.
We would like to express our profound dissatisfaction with three years of time lost for access to culture for the visually-impaired due to a lack of consensus building, technical commitment and political will on the part of both the Commission and EU member states. This expresses a lack of sensitivity of the needs of blind and visually impaired persons. We want the blame game between the European Parliament, Council and Commission to end right now with an institutional agreement.
We request that Italy and other EU member states to not introduce new barriers into the EU legislation that would limit the efficacy of the Treaty. The worst would be “commercial availability”.
“Commercial availability would kill the objectives of the Marrakesh Treaty: “If you can buy a book, you can´t share it” ("Se è possibile comprare un libro, non è possibile prenderlo in prestito")
("Se si può comprare un libro, non è possibile prendere in prestito")
Three reasons against "commercial avialability"
A. It is discriminatory against blind persons: Sighted persons can get most books for free from public libraries, but visually impaired-persons will not.
B. It is a great bureaucratic burden for libraries and civil society, creating legal uncertainty that will effectively prevent cross-border sharing of accessible books.
C. It is not an incentive for industry because Marrakesh exists precisely because of a great market failure in which industry did not provide accessible works.
D. There is no clear definition of “commercial availability”: where? at what price? in what format?
Finally, we ask the European Parliament, the Commission and the Council to have three-way informal consultations to reach an agreement for a “fast track” for the swiftest way of assuring ratification and implementation.
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