Bittersweet EU Marrakesh legislation: the struggle for access continues
A personal comment
The very sweet part is that the EU will probably soon ratify the Marrakesh Treaty and cross-border exchange of accessible books will be legalized and facilitated both inside and outside the EU by means of a mandatory exception and limitation to copyright. The bitter part is that EU Marrakesh legislation has also includes the right of EU member states to impose a “tax on accessible books” or a “compensation right” despite the clear and nearly unanimous postion of the European Parliament and the European Commission against any kind of payment for the sharing and exchange of works accessible for millions of visually-impaired persons. (The final texts for the Directive and the Regulation can be seen below). Now the fight against this unfair but optional “tax on accessible books” must be taken to EU member states to prevent it from becoming part of national laws.
Throughout the last seven years of campaigning in the EU for a right-to-read binding Treaty we have learned that when we expressed our arguments within open, democratic and transparent processes as defenders of disability persons´rights we have almost always won. In contrast, when the discussions took place behind closed doors (like among EU member states in the Council or private conversations with publishers) without participatory debates nor the basic acountability of what positions were being taken by whom, we usually lost. In contrast, the generally open atmosphere and debates of the World Intellectual Property Organization have been important factors in enabling us to finally get a Treaty in Marrakesh in 2013.
Especially favourable for our right-to-read campaign has been the quite transparent and participatory processes of European Parliament. The European Parliament, especially its Petitions Committee and later the Legal Affairs Committee, have proven to be great allies over the years, first in successfully changing the initial EU position against a binding international treaty and then pushing for ratification and effective, rights-based EU legislation for its implementation. Sadly, just a few weeks of closed doors, opaque trialogue negotiations between the European Commission, the European Parliament and EU member states, degraded what could have been an optimum result for disability rights in the EU. Unfortunately, “smoke-filled rooms” packed with generally doctrinaire national copyright heads under the influence of publishers´ lobbies is not the best place to negotiate an agreement that should have been prodominantly based on international human rights law for persons with a disability instead of guided by paranoid, baseless and narrow stances on intellectual property rights.
How is it that the final agreement is not in accordance one of the key consensus elements approved by Europe´s democratic representatives and even proposed by the European Commission: the harmonised exclusion of economic compensation for sharing accessible works? The same political representatives of majority governing parties in EU member states supported this position strongly in the European Parliament but then quickly caved in to the pressure of publishers´ lobby in closed door negotiations. I must say that something is quite undemocratic about the final process for negotiating the texts of EU laws like these without sufficient accountability nor transparency. Moreover, what was the great hurry to reach an agreement if we have already waited years to get this far? Why didn´t the Commission or the Parliament persist and insist more on their democratically adopted postures by appealing to public opinion for a better agreement?
This said we must always recognise the great success of getting this far with even moderate success against great odds and powerful enemies. Although we had to drag many along kicking and screaming, we have successfully forged consensus opinions, both internationally and in the EU. Now we have an international binding treaty, we have a mandatory, more or less harmonized, exception to copyright inside the EU and a legal mechanism for exchanging accessible books with the rest of the world. Even more importantly, we have consolidated a global network of disability activists, librarians, book providers, policy-makers and legal experts that will enthusiastically do the practical work inside and outside institutions to make Marrakesh Treaty objectives a reality on the ground.
It should be noted that ratification of the Treaty is a totally separate political process from the EU copyright legislation just agreed upon on the implementation of the Treaty´s content in EU member states. Over the past years our opponents in the EU Council such as Germany, Italy and the UK, have deceitfully and knowingly used false pretexts to block the ratification of the Marrakesh Treaty on the basis of a supposed lack of EU competence to ratify, an argument that was totally rejected by the European Court of Justice as well as by every institutional legal service that even considered this as a “non-issue”. Now that this “non-issue” has been clarified by theEU´s top court, we expect EU member states and the European Parliament to move swiftly toward EU ratification of the Treaty. There is no justification for further delays.
David Hammerstein
