WAN Yong* & CHEN Lu**

 

Abstract: The Marrakesh Treaty is an international treaty specifically concluded by the World Intellectual Property Organization (WIPO) to address the “book famine” for people who are blind, visually impaired, or otherwise print disabled. It uses the tools of copyright law and policy for the purpose of human rights. Prior to the conclusion of the Marrakesh Treaty, the international intellectual property treaties were all focused on intellectual property protection and the higher level of protection. The Marrakesh Treaty is the first international intellectual property treaty to highlight the limitation and exceptions of rights and explicitly use human rights discourse. There were some theoretical disputes during the negotiation of the Marrakesh Treaty, mainly because the international community failed to reach a consensus on such basic theoretical issues as the relationship between copyright and human rights and the legal nature of the Marrakesh Treaty. When implementing the Marrakesh Treaty in domestic law, China should face theoretical disputes, coordinate the protection of copyright and the promotion of human rights on the basis of its national conditions, and make corresponding institutional arrangements.

 

Keywords: Marrakesh Treaty · human rights · fair use · accessible format

 

At its 31st session on October 23, 2021, the Standing Committee of the 13th National People’s Congress (NPC) adopted a Decision on the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (hereinafter referred to as the Marrakesh Treaty). On February 5, 2022, China deposited its instrument of ratification with the World Intellectual Property Organization (WIPO). On May 5, 2022, the Marrakesh Treaty officially came into effect in China. Since the Treaty entered into force, major challenges and problems facing China have been how to ensure the comprehensive implementation of the Treaty for the fulfillment of our international obligations. The paper will comprehensively analyze the conclusion background and legal significance of the Marrakesh Treaty, explore the relationship between copyright and human rights specified in it, and contribute a Chinese approach by responding to the theoretical disputes during the negotiation of the Treaty. 

 

 

The preface of the Marrakesh Treaty begins with an emphasis on the intersection of such two areas of law as copyrights and human rights. “A review of the principles declared in the Universal Declaration of Human Rights, and the United Nations Convention on the Rights of Persons with Disabilities like non-discrimination, equal opportunities, accessible access and full and real participation in and integration into societies reveals that it is necessary to strike a balance between the effective protection of authors’ rights and pursuit of greater public interests.” The Marrakesh Treaty utilizes the tools of copyright law and policy for the purpose of protecting human rights,¹and to “ensure laws that protect intellectual property rights will not be an unreasonable or discriminatory barrier to access to cultural materials by persons with disabilities”².

 

 

The Marrakesh Treaty is an international treaty specifically concluded by the WIPO to address the “book famine” for people with print dyslexia, including those with visual impairment. According to statistics from the World Blind Union (WBU), approximately 300 million people in the world are blind or visually impaired. In developing countries, only about 7 percent of books are offered in accessible formats for persons with visual impairment to access and read. While in developing countries, the situation is even worse, with only about 1 percent of books in barrier-free formats.³ People who are visually impaired find it hard to be part of society as they don’t have access to enough reading materials in barrier-free formats. As a result, many of their rights recognized by the international community are infringed upon, particularly the human rights enshrined in the United Nations Convention on the Rights of Persons with Disabilities. Books in barrier-free formats usually need to be reformatted before they are accessible to people who are blind or visually impaired, which may violate copyright holders’ right to reproduction. Meanwhile, online access to and cross-border circulation of books in accessible formats may infringe upon the distribution right and the right to make available to the public. Therefore, the WBU keeps calling on all countries to make corresponding institutional arrangements under the framework of copyright law to facilitate access to works for people who are blind or visually impaired. 

 

The book famine for people who are blind, visually impaired, or otherwise print disabled is a global issue that requires a global solution. First, in terms of domestic law, it’s important to stipulate the copyright for people who are blind, visually impaired, or otherwise print disabled as an exception. However, before the conclusion of the Marrakesh Treaty, about half of the member states of WIPO didn’t do so.⁴ After the advent of the digital era, even in countries with such exceptions, copyright laws still cannot fully meet the needs of people who are blind, visually impaired, or otherwise print disabled. Besides, copyright laws vary from region to region, which means exceptions are solely applicable within the territory of each country. In this connection, accessible formats made according to such exceptions can’t be exported to other countries. For countries themselves, it is neither desirable nor efficient to independently address the book famine, even for countries with easier access to accessible formats. Therefore, if we want to address the root cause of the book famine, we need the concerted efforts of the whole international community and a strong response in the form of international treaties.⁵

 

Against the aforementioned background, the WBU drafted the WIPO Treaty Adopted to Facilitate Access for the Blind, Visually Impaired, and Print Disabled. In May 2009, delegations of Brazil, Ecuador and Paraguay handed it in at the 18th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR). In June 2010, at the 20th session of SCCR, the delegations of the United States, the European Union and Africa each submitted a different proposal. The United States and the European Union advocated the adoption of a non-binding document, while the African delegation supported the conclusion of a binding one that would cover the visually impaired, libraries, archives, etc. All Parties intensively discussed the above-mentioned four proposals, which were integrated as an informal text in June 2011. Later, after several rounds of informal negotiations, the Parties decided to convene a diplomatic conference in Marrakech, which adopted the Marrakech Treaty in June 2013.⁶

 

The Marrakesh Treaty imposes two main obligations on the Contracting Parties. The first obligation is that Parties should stipulate copyright limitations and exceptions so that “beneficiaries” and “authorized entities” can make necessary modifications to make copies of works available in accessible formats for print disabled. “Beneficiaries” include everyone who is so physically challenged that he or she has difficulty reading printed material — including people who are blind or visually impaired, and those who can’t use the same or similar ways to read printed materials as the able-bodied do because of another physical disability. “Authorized entities” refer to organizations or entities that are authorized and recognized by the government to ensure those individuals considered as “beneficiaries” can enjoy access to available format copies for free. The second obligation is that Parties shall permit the “cross-border exchange” of accessible format copies made pursuant to the limitations and exceptions set forth in the Marrakesh Treaty or as required by law.

 

 

Before the Marrakesh Treaty, no other international IP treaties had explicit human rights discourse. The Berne Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the WIPO Copyright Treaty (WCT) do not directly refer to the human rights of authors or other subjects, but only use general terms such as “public interest” and “public health.” Not only does the Marrakesh Treaty refer to the names of such human rights treaties as the Universal Declaration of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities, it also explicitly uses many human rights discourses like “non-discrimination”, “equal opportunities”, “accessible access”, “full and effective participation”, “freedom of speech”, “freedom to seek, receive and impart information and ideas”, “right to education” and “right to engage in research.”⁷ The human rights discourse does not change the nature of the Marrakesh Treaty; it is still a treaty on copyright because WIPO, which is responsible for promoting and protecting world intellectual property rights, played a conspicuous part in its conclusion. 

 

It is clearly significant that the Marrakesh Treaty explicitly mentions human rights. For one thing, the purpose of the treaty is not limited to copyright flexibility, but also pays attention to human rights. Some scholars maintain that the primary purpose of the treaty is to promote the human rights of people who are blind, visually impaired, or otherwise print disabled by ensuring their access to copyrighted works according to world IP law rules. At the level of treaty interpretation, the human rights values mentioned in the preamble to the Marrakesh Treaty should guide its interpretation and implementation. Therefore, a mere copyright exception stipulated by the Parties to facilitate the production and distribution of accessible format copies is not sufficient to fulfill treaty obligations. For another thing, it intends to remind the Parties that considering the impacts of copyright laws and policies on human rights, we should ensure the compatibility of copyrights and human rights when implementing the Marrakesh Treaty domestically.⁸

 

 

Human rights, as the most fundamental rights that people enjoy based on human dignity, are characterized by universality and equality. However, as a particular group, people blind, visually impaired, or otherwise print disabled face various obstacles to their realization of equal human rights. It is not enough to protect the basic human rights of people who are blind, visually impaired, or otherwise print disabled, they should also be given special protection under the law. The differentiated treatment and special protection for particular groups is the rightful realization of the value of equality in legislative practices, and the legislative practices of equality do not exclude the reasonable differential treatment for particular groups to ensure substantive equality.⁹ “In order to rectify to a certain extent the inequality caused by the guarantee of formal equality, the prerequisites necessary for the development of each person’s personality are guaranteed in a real sense and in different ways according to the different attributes of each person.”¹⁰ The Marrakesh Treaty attempts to restore the substantive equality to which people who are blind, visually impaired, or otherwise print disabled are entitled by providing special treatment.

 

During the negotiation of the Marrakesh Treaty and its implementation in domestic law, there emerged a number of highly controversial issues, such as the scope of accessible format copies and the application of commercial accessibility, mainly because each party failed to reach a consensus on such basic theoretical issues as the relationship between copyright and human rights and the legal nature of the Marrakesh Treaty.

 

 

The modern copyright system is founded on a number of European philosophies of the 17th and 18th centuries, including, in particular, the theory of the legitimacy of the right to property.¹¹ According to Locke, the right to property is an inherent and natural human right. Political society and legal systems exist to protect this kind of right. According to Rousseau, “Of all civil rights, the right to property is the most sacred. And in some aspects, it is even more important than freedom.”¹² The French Declaration of Human Rights of 1789 states that “the free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom while shouldering responsibility for abusing those freedoms as defined by law,” which has undoubtedly elevated copyright to the status of a fundamental human right. The enactment of the Droit de Auteur of 1793, on the other hand, was guided by the idea of “natural rights,” stressing that the purpose of the act is to protect the rights of individual authors.¹³

 

Since the beginning of the 20th century, major international conventions on human rights have given human rights meanings to intellectual property. For example, Article 27 of the Universal Declaration of Human Rights says: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Everyone has the right to protect the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The aforementioned article stipulates two aspects: The right of the public to share in the benefits of intellectual creativity and the right of the creator to share in the fruits of his intellectual creativity. This provision reveals that the protection of the exclusive right to intellectual property and the reasonable sharing of intellectual property benefits constitute the complete content of the intellectual property system, and also reflects the concept of distributive justice in the intellectual property system.¹⁴

 

Distributive justice was initially part of the original IPR regime, but diminished in practice as interest groups continued to lobby policymakers to protect their industrial interests. With the continuous expansion of IP, it has changed into a “hegemony of knowledge” with the “digital divide” and “information feudalism” gradually taking shape, which later led to shrinking public space and infringement upon basic human rights to obtain knowledge and information. It should be noted that such apparent conflicts between intellectual property rights or copyrights and human rights are mainly caused by the imbalance of interests between the holders of the intellectual property rights and the public instead of institutional defects in the intellectual property rights or copyrights themselves. In other words, the relationship between intellectual property rights or copyrights and human rights isn’t a zero-sum game. Rather, they are compatible under the concept of distributive justice. Under the concept of distributive justice, the Marrakesh Treaty attempts to repair the imbalance of interests resulting from publishers’ failure to provide adequate access to materials for the print disabled, especially in developing countries.¹⁵

 

 

Accessible films are specially processed to facilitate the enjoyment of people with visual and hearing impairments. They allow people with visual and hearing impairments to enjoy films without barriers by adding voice narration, sign language narration and subtitles.¹⁶ Accessible films play a significant role in helping people with visual and hearing impairments enjoy equal access to information and cultural services and have artistic enjoyment without barriers. However, the current supply of such films can hardly meet the huge demand of people with visual and hearing impairments. One of the critical factors hindering the development of such films is copyright. 

 

Article 2(ii) of the Marrakesh Treaty defines “accessible format” in flexible and neutral terms: Accessible format is any format using alternative means or formats that enables a beneficiary person to read or access the content as feasibly and comfortably as someone who is not print disabled. It is quite necessary to define it in flexible and neutral terms as it can ensure the Marrakesh Treaty advance with the changing times. When implementing the Treaty in their countries, the Contracting Parties should adopt flexible and neutral definitions to adapt to the development of future technologies. The treaty imposes no limitations on the form of accessible formats, so it seems that works of accessible format can include accessible films. This, however, is not the case. 

 

The Marrakesh Treaty defines “works” as follows: “Works include literary and artistic works as defined by Article 2(1) of the Berne Convention. They take the form of text, notation and related illustration.” Although literary and artistic works, including films, are defined quite broadly in the Berne Convention, the latter part of their definitions makes a special requirement on their forms, thereby limiting the number of types. The draft treaty submitted by Brazilian and other delegations in 2009 allowed for a very broad range of works to be produced in accessible formats, including literary works, dramas, music, artistic works, databases, and films.¹⁷ However, the EU delegation argued that works should be limited to those in print format,¹⁸ which naturally excludes cinematographic works. The reason developed countries such as those of the European Union oppose extending the scope of the Marrakesh Treaty to films is mainly attributable to the lobbying the film and television industries in these countries, who believe it will seriously hurt their economic interests. Article 4 of the Marrakesh Treaty stipulates mandatory exceptions, which means that once films are included in the scope of this treaty, developed countries must stipulate exceptions to the right of reproduction, distribution and making available to the public in their domestic legislation, which is unacceptable to some developed countries.¹⁹

 

A compromise was reached when the Marrakesh Treaty was adopted at the diplomatic conference. On the one hand, a narrower definition of works was adopted, as was an agreed statement stipulating that the definition of works includes works in audio form such as audiobooks.²⁰ Therefore, “works” in the Marrakesh Treaty do not include audio-visual works such as films, and the mandatory exception under Article 4 does not include films. On the other hand, Article 12 of the Treaty allows the Contracting Parties to implement other copyright restrictions and exceptions not stipulated in the Treaty in their domestic laws in light of their economic situation and social and cultural needs. Parties can choose to provide corresponding restrictions or exceptions for accessible films in their domestic laws.

 

 

Before the Marrakesh Treaty was concluded, all international intellectual property treaties focused on protecting intellectual property rights and were designed to enhance its protection. This has led to the continuous expansion of intellectual property rights, resulting in a situation where almost every piece of knowledge has property rights. Some scholars have called it “the second enclosure movement.”²¹ Although these international intellectual property rights treaties also stipulate rights restrictions and exceptions, their nature is non-mandatory, creating an unbalanced situation in which mandatory protection and non-mandatory restrictions co-exist. The Marrakesh Treaty is the first international treaty focusing on the issue of rights restriction and exception.

 

The Marrakesh Treaty realizes the goal of human rights protection by restricting copyright, and then readjusts the copyright law to facilitate the realization of human rights equality in the real sense. Its Article 4(1)(i) stipulates that, for the purpose of providing accessible format versions of works for beneficiaries, countries shall define restrictions or exceptions for four exclusive rights: The right to copy, the right to distribute, the right to modify and the right of making available to the public (Under China’s Copyright Law, it means the right to disseminate information on the internet) in their copyright laws. In addition to the above-mentioned mandatory restrictions or exceptions, the Marrakesh Treaty also allows the Contracting Parties to stipulate other rights restrictions or exceptions.

 

 

Article 4(2) of the Marrakesh Treaty stipulates: “In order to facilitate the beneficiary person’s access to works, the Contracting Parties may also stipulate restrictions or exceptions for the right of public performance.” The Treaty does not define the right of public performance, so there are some differences regarding this right. In the context of the Berne Convention, the right of public performance includes communication to the public in places where the performance is performed. This is different from the right of communication to the public, which covers long-distance communication. Besides, the right of public performance does not include recitation, as the Berne Convention has stipulated the right of public recitation. However, there is a view that the right of public performance in the Marrakesh Treaty should include recitation,²² for under most Parties’ domestic law, the right of public performance is used in a broad sense, and there is no separate right of public recitation in their domestic laws. The WIPO Performances and Phonograms Treaty also defines “performers” as “actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore.”²³ Obviously, recitation is also a form of performance.

 

Although the Marrakesh Treaty is closely related to the Berne Convention, as can be seen from Article 1 of the former, “relations with other conventions and treaties,” the two treaties are independent. Besides, the definition of “works” in Article 2 of the Treaty also emphasizes that “works” refers to the literary and artistic works in Article 2(1) of the Berne Convention. Therefore, in the Marrakesh Treaty, unless otherwise specified, its definition of related concepts should be “self-sufficient” and doesn’t have to refer to relevant articles in the Berne Convention. This means that the right of public performance in the Marrakesh Treaty does not need to be interpreted in line with the right of public performance in the Berne Convention. The Berne Convention stipulates the right of public performance and the right of public recitation separately only because it is rooted in its own specific historical context. This context didn’t exist when the Marrakesh Treaty was signed. One of the main ways to “perform” works is “recitation,” which is very important for people who are blind, visually impaired, or otherwise print disabled. Therefore, this paper holds that the right of public performance provided for in the Marrakesh Treaty should include recitation.

 

 

During the negotiations at the diplomatic conference, several delegations suggested that the limitation or exception of translation rights should also be stipulated. However, other delegations objected on the following grounds: First, the Berne Convention doesn’t provide any special limitations or exceptions to the right of translation except for the limitations on it for the benefit of developing countries in Article 2 of the Appendix. Second, the purpose of the Marrakesh Treaty is to enable people who are blind, visually impaired, or otherwise print disabled to have access to works on an equal-footing and without discrimination, which is also where the legitimacy of related rights limitations and exceptions comes from. If the limitations and exceptions of translation rights were defined for the benefit of people who are blind, visually impaired, or otherwise print disabled, the related works might only exist in the accessible format. If this were to be the case, people who are blind, visually impaired, or otherwise print disabled would enjoy more privileges than those who are not visually impaired. Finally, the diplomatic conference adopted an agreed statement on the issue of translation rights: “In terms of translation rights, this clause neither narrows nor expands the scope of application of limitations and exceptions as required by the Berne Convention.”

 

Although Berne Convention doesn’t establish any special limitations or exceptions to the translation right, some people still believe there are implied exceptions to the translation right in this Convention. The reason is that it would be illogical if the Convention only establishes exceptions to the right of reproduction, but does not stipulate that exceptions can be applied when translating these works under the same circumstances, as the original copy of the work is almost useless for people who don’t speak or understand the source language. Besides, as the “minimum protection” principle of the Berne Convention does not apply to domestic works, the contested works will surely be foreign works.²⁴

 

 

The agreed statement on Article 4(4) of the Marrakesh Treaty stipulates: “… the requirement of commercial availability shall not be taken as the basis…” As seen from the wording used in the agreed statement, it seems that “commercial availability” constitutes the requirement for applying limitations or exceptions. However, the scenario discussed is whether “non-commercial availability” can be regarded as a requirement applicable to limitations or exceptions.

 

Before the Marrakesh Treaty was concluded, some countries established in their domestic laws that limitations or exceptions could only be applied if the accessible format version was not available in the market under reasonable terms. In other words, if the accessible format version has been provided in the market through licensing or other means, and the beneficiary persons can obtain it through reasonable terms, then there would be no need for the law to interfere with the copyright owner’s property rights by providing for limitations or exceptions as the interests of various parties have been balanced through market behaviors. Taking non-commercial availability as a condition for applying limitations or exceptions helps to encourage publishers to produce accessible format versions when making printed versions. Publishers are also the most qualified and capable institutions to produce accessible formats. However, during the negotiations at the diplomatic conference, some Parties believed that significant uncertainty still existed in the interpretation of “commercial availability.” For example, how should we specify “commercial”? Must works be provided by for-profit organizations? To what extent can works be provided to meet the “commercial” conditions? And at which time should availability be determined? Is it when the work is published, when the people who are blind, visually impaired, or otherwise print disabled try to buy it or at some other time? If these questions couldn’t be well answered, then it would be better not to establish that the absence of commercial availability is the premise of limitations or exceptions.²⁵ Some Parties also believed that it was up to each country to decide this in light of their national conditions.²⁶ In the end, the Marrakesh Treaty adopted this proposal, stipulating in Article 4(4) that Contracting Parties may confine limitations or exceptions to works that cannot be obtained in the market through commercial channels under reasonable terms for beneficiaries.

 

In order to facilitate the cross-border exchange of accessible formats, the transparency of legislation on the commercial availability of each Contracting Party is essential. To solve this problem, Article 4(4) of the Treaty requires any Contracting Party that regards the non-commercial availability as the limitations or exceptions of its applicable right to make a declaration in the notification deposited to the Director-General of the WIPO when ratifying, accepting or at any time after accession to the Treaty.

 

 

In international copyright conventions, exception usually refers to free use or fair use, meaning that one can use works without the copyright owner’s consent and for free. There are both a broad and narrow sense of limitations. The limitation in the narrow sense refers to involuntary license because copyright is “limited” to the right to remuneration. Broadly speaking, limitations include both involuntary permission and exceptions.²⁷ Strictly speaking, the Marrakesh Treaty shall not apply the word “exception” because once “exception” is adopted, it means that no remuneration is required. However, Article 4(5) of the Treaty stipulates: “Whether the limitations or exceptions established in this Article involve remuneration or not is determined by the domestic law.”

 

Article 4(5) of the Marrakesh Treaty mandates Contracting Parties to decide which legislative model to adopt in their domestic law because different countries have different legislative models of copyright law to protect the interests of people who are blind, visually impaired, or otherwise print disabled. Hungary, Armenia and other countries adopt the unpaid model and make the accessible format version for the benefit of people who are blind, visually impaired, or otherwise print disabled, and do not need to pay remuneration to copyright owners, while Austria, Germany, Sweden and other countries adopt the paid model, and the authorized entity needs to pay fair and reasonable remuneration to the copyright owner for making accessible format version of a work.²⁸

 

 

There are 17.32 million people with a visual impairment in China, and the number of people with dyslexia is even larger. The entry into force of the Marrakesh Treaty in China will better meet the spiritual and cultural needs of people who are blind, visually impaired, or otherwise print disabled in China, improve their education and further strengthen China’s role as a major country in actively contributing to the well-being of the disabled and intellectual property management.²⁹ In 2020, when the Standing Committee of the National People’s Congress amended the Copyright Law, some institutional arrangements had been made for the entry into force of the Marrakesh Treaty in China. For example, the concept of “dyslexia” was first introduced to expand the scope of beneficiary persons; the Braille format was expanded into various accessible forms, providing more ways for people who are blind or visually impaired to have access to works; by changing “publishing” to “providing,” it enriches how accessible format works are used. However, as the Copyright Law has only one provision in principle, it fails to address appropriately some of the theoretical disputes mentioned above, meaning it may even lead to systemic legal risks. To fully implement the Marrakesh Treaty and eliminate legal risks, this paper holds that when amending the Implementation Regulations of the Copyright Law, the principled provisions of the Copyright Law should be refined and relevant legal concepts clarified.

 

 

The “three-step test standard” was first established in the Berne Convention, and its scope of application is limited to the right of reproduction.Later, the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the WIPO Copyright Treaty (WCT) also stipulated the “three-step test standard” and extended its scope to all exclusive copyright rights. The “Three-step test standard” means that any limitations and exceptions to copyright can only be applicable in “some special cases,” “shall not conflict with the normal exploitation of the work” and “shall not unreasonably prejudice the lawful interests of the author.” Before the revision of the Copyright Law in 2020, this standard was established in the Implementation Regulations of the Copyright Law, but not in the Copyright Law. Article 24 of the Copyright Law in 2020 introduced this standard provided for in the general provisions of fair use.

 

Being abstract and flexible, the three-step test standard can be used to solve extremely sensitive problems associated with copyright exceptions in international negotiations. Therefore, it has been included in many international copyright conventions and intellectual property provisions under the free trade framework. However, the previous research unduly emphasized its rigid side, resulting in its limited application. The Max Planck Institute of Intellectual Property in Germany invited many international copyright law experts to draft the Declaration on a Balanced Interpretation of the ‘Three-step Test’ in Copyright Law. The declaration proposes that the “three steps” should be evaluated as a whole rather than viewed separately, and limitations and exceptions should be interpreted in line with their aims and objectives, not in a narrow sense.³⁰

 

Article 17(2) of the Charter of Fundamental Rights of the European Union stipulates: “Intellectual property rights shall be protected.” This means that intellectual property, as a property right, is also a basic right. The Charter of Fundamental Rights of the European Union also establishes other fundamental rights such as freedom of expression and information, freedom of art and science, freedom to engage in business, etc. These fundamental rights may conflict with intellectual property rights, which shall be interpreted according to the principle of proportionality under Article 52 of the Charter of Fundamental Rights of the European Union.³¹

 

As can be seen from the judicial practices in China, no court such as the European Court of Justice or the European Court of Human Rights discusses the conflict between copyright and other basic rights from the perspective of the third-party effect of basic rights. However, to some extent, the expression “shall not unreasonably prejudice the lawful interests of the author” used in the “three-step test standard” is embedded with the principle of proportionality. Therefore, Chinese courts can use the “three-step test standard” to discuss the conflict and coordination between the copyright of copyright owners and the human rights of people with dyslexia from the perspective of mere private law and make appropriate circumstance-specific arrangements.

 

 

Before the revision of the Copyright Law in 2020, the wording of the fair use clause of “Braille publishing” in China’s Copyright Law was: “convert published works into Braille publishing.” There are no limitations on “works” here, and it seems that it should be interpreted according to the definition of “works” in the Copyright Law. According to the provisions of the Copyright Law, works include “cinematographic works and works created by methods similar to filming.”³²

 

In the case of iQiyi’s “Pretty Woman” app, the app provided the sign language version of the film I Am Not Madame Bovary to unspecified platform users via the app, arguing that it was consistent with the Copyright Law and the fair use of “Braille publishing.” Beijing Internet Court held that “Braille” refers to a written form perceived by the blind and represented by different rows of protruding dots. In the context of Article 22(1)(xi) of the Copyright Law, “works” are limited to written works provided in the form of Braille, and the exceptional limitations related to copyright are only limited to the right of reproduction and distribution.³³ The Beijing Internet Court heard the aforementioned case before the revision of the Copyright Law in 2020. Although there was no limitation on the type of works, it is lawful to exclude accessible films from the “works” in this article from the perspective of system interpretation.

 

To make it easier for people who are blind, visually impaired, or otherwise print disabled to read and also align with the expression of the Marrakesh Treaty,³⁴ Article 24(1)(xi) of the Copyright Law in 2020 amended “republishing published works in Braille” into “providing published works to people who are blind, visually impaired, or otherwise print disabled in an accessible way so that they can perceive.” The revised Copyright Law does not impose any limitations on the types of works and uses the broad wording of in “accessible way.” Therefore, from the perspective of literal interpretation, scope of this clause can be interpreted as applying to accessible films. From the perspective of purpose explanation, the legislative purpose of Article 24(1)(xi) of the Copyright Law is largely to meet the requirements of popularization, generalization and personalization as well as the needs of specific people. As an important part of accessible information, accessible films can help bridge the “digital divide” and are an essential channel to help people who are blind, visually impaired, or otherwise print disabled better integrate into society and share culture equally. This paper holds that when amending the Implementation Regulations of the Copyright Law, it should be stipulated that accessible films also fall into the scope of barrier-free format works to avoid disputes in interpretation.

 

 

China’s Copyright Law does not establish the right of recitation separately. As a form of performance, “recitation” shall naturally fall into the scope of performance right. The definition of “performance” in Article 5(ii) of the Implementation Regulations of the Copyright Law of 1991 is: “by playing music, performing scripts, reciting poems, etc. to publicly reproduce works with sound, expression and action directly or with the help of technical equipment.” Although the definition of “performance” was deleted in the later Implementation Regulations of the Copyright Law, there is no doubt that recitation falls within the scope of the performance. 

 

The performance rights include live performances, specifically people’s performances, such as singing and dancing. It also includes mechanical performance, that is, performance with the help of technical equipment. For example, hotels play background music through audio equipment. In addition to the performance right, China’s Copyright Law also stipulates the right to show: “the right to publicly reproduce art, photography, audio-visual works, etc. through technical equipment such as projectors and slide projectors.” Be it from the technical point of view or from the legal perspective, there is no need to stipulate the screening right separately, which shall be fully included in the scope of mechanical performance rights. In China’s Copyright Law, the separation of performance right from projection right has remained unchanged, making it necessary to discuss the projection right separately because it involves screening accessible films. Watching accessible films in cinemas is an important way for visually impaired people to participate in social and cultural life. If showing accessible films in cinemas is considered an infringement, its original purpose will be lost. Therefore, it is necessary to stipulate that “the exception for people who are blind, visually impaired, or otherwise print disabled” shall be extended to the screening right in China’s Copyright Law.

 

Since China’s Copyright Law was passed in 1990, an exception provision has been provided for “making minority language versions”: “Translate works written in Chinese (later changed to the common national language) published by Chinese citizens, legal persons or unincorporated organizations into works of minority languages and publish them in China.” This provision was aimed at boosting the development of our national minority cultures. There are no similar provisions in the Berne Convention and TRIPs and other international treaties, so the Copyright Law limits its applicable works to the works of “Chinese citizens, legal persons or unincorporated organizations.”³⁵ In the future, when the exception of translation rights is established for the benefit of people who are blind, visually impaired, or otherwise print disabled, the aforementioned model will remain valid.

 

 

China’s instrument of ratification of the Marrakesh Treaty deposited to the Director-General of WIPO on February 5, 2021 contains the following statement: “According to Article 4 of the Marrakesh Treaty, the Hong Kong Special Administrative Region of the People’s Republic of China shall limit the copyright exceptions stipulated in this Article to works that cannot be obtained in the market on reasonable terms in a specific accessible format.” Since the statement does not make any special provisions on the exception clause in the Chinese mainland, it means that the Chinese mainland doesn’t take the absence of commercial availability as a precondition for the application of limitations or exceptions.

 

Generally speaking, the copyright laws of developing countries usually don’t regard non-commercial availability as a condition of application limitation or exception, mainly because there are few works published in accessible format in developing countries. Besides, as the major international publishing groups are all in developed countries or regions, the main markets of such works are naturally concentrated in those countries and regions. The Chinese government’s statement has taken into account the respective economic development of the Chinese mainland and Hong Kong SAR. Besides, taking “non-commercial availability” as a condition for applying limitations or exceptions seems somewhat inconsistent with the objective of ensuring people who are blind, visually impaired, or otherwise print disabled enjoy the same access to works as ordinary people, as emphasized in the Marrakesh Treaty. Therefore, this paper argues that China shall not take “non-commercial availability” as the premise for applying exceptions.

 

 

Although the Contracting Parties can decide whether to pay for the limitations of their rights according to Article 4(5) of the Marrakesh Treaty, they should adopt the unpaid model from the perspective of facilitating the production and provision of a accessible format. Adopting the paid model will bring unnecessary complexity, which may deter people who are blind, visually impaired, or otherwise print disabled from enjoying the special treatment provided by Marrakesh Treaty. Besides, adopting the paid model will incur an economic burden, hampering the efforts of people who are blind, visually impaired, or otherwise print disabled to have access to works. Besides, extensive payment requirements will also exacerbate the risk of discrimination between people who are blind, visually impaired, or otherwise print disabled and those who are not visually impaired. Given that there are many types of fair use stipulated in the domestic law of each Contracting Party, there is no need to pay for these fair uses.³⁶

 

As far as China’s Copyright Law is concerned, whether it was “Braille publishing” before or “use by people with who are blind, visually impaired, or otherwise print disabled” after the amendment of the Law in 2020, they all appear as a reasonable type of use. Therefore, China’s Copyright Law adopts the unpaid model, which is in line with China’s national conditions. The collective management organization of copyright in China is still at the stage of development, and there is a big gap between China and Germany and other countries that adopt the paid model; in this case, even if China adopts the paid model, the channels of payment and collection may not be smooth, and the legislative effect and practical effect are not good. More importantly, if it is required to pay the obligee for the production and provision of accessible format versions and other acts, the relevant economic costs will inevitably be transferred to the final consumers. Those who are blind, visually impaired, or otherwise print disabled usually have limited means in China, which will lead to unbearable burdens for many people. Considering all factors, it is more appropriate for China to adopt the unpaid model.

 

(Translated by TIAN Tong)

 

* WAN Yong ( 万勇 ), Professor at the Renmin University of China Law School.

 

** CHEN Lu ( 陈露 ), Postgraduate student from the Renmin University of China Law School. This paper is a periodic research result of the Case Study of Copyright Protection in Media Convergence in the Digital Era (Grant No. 20XN0001) of the scientific research fund program of the Renmin University of China.

 

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