GUO Rui*

 

Abstract: An in-depth analysis of the human rights attributes of the Marrakesh Treaty helps clarify theoretical issues such as whether there is a conflict between copyrights and human rights, and solve the problems of system design and law enforcement in terms of authorized entities and accessible formats. This paper discusses the human rights perspective contained in the Marrakesh Treaty from the background, positioning, and content of the treaty, and puts forward suggestions on policies and laws for the implementation of the Marrakesh Treaty based on the implementation of the treaty in the Chinese legal system.

 

Keywords: Marrakesh Treaty · beneficiary · accessible format · authorized entities

 

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) entered into force for China on May 5, 2022. Now the treaty has formally come into force, China has to implement its content in legislation, law enforcement, and justice. China is a party to many international human rights and copyright treaties, and its domestic laws and regulations have covered the protection of relevant rights. An accurate understanding of the Marrakesh Treaty will help clarify the content of human rights and copyright protection. This paper aims to make an indepth analysis of the human rights attributes of the Marrakesh Treaty, thus clarifying the meaning of the human rights attributes of the Marrakesh Treaty, and helping solve the problems of system design and law enforcement in terms of authorized entities and accessible formats.

 

Existing studies academic studies of the Marrakesh Treaty mainly focus on the relevant system of copyright laws and the adjustment of library services. There is still a lack of in-depth elaboration on the human rights attributes of the Marrakesh Treaty, especially on how to reflect the human rights attributes in the design of a specific system. This paper includes five parts. The first part discusses the human rights perspective contained in the Marrakesh Treaty from the background, positioning, and content of the treaty. The second part discusses the consistency of copyright protection and human rights protection. The third part discusses how to solve the apparent conflicts between human rights protection and copyright protection under the principle of constitutional human rights, starting from the implementation of the Marrakesh Treaty in China’s legal system. The fourth part puts forward some policy suggestions on the implementation of the Marrakesh Treaty from the perspective of the human rights attributes of the treaty. And, the last part is the conclusions.

 

 

Undoubtedly, the Marrakesh Treaty occupies a unique position in the system of international human rights treaties. The Marrakesh Treaty is explicitly drafted based on the human rights principles set out in the Universal Declaration of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities (hereinafter referred to as the CRPD), under the leadership of the World Intellectual Property Organization (WIPO). It is the first copyright treaty that explicitly incorporates human rights.¹ The core purpose of the Marrakesh Treaty is to define the boundary of the rights of copyright holders under the human rights principle, so as to increase access to books, magazines, and other printed materials for persons who are blind, visually impaired, or have other print disabilities.

 

The 2006 UN Convention on the Rights of Persons with Disabilities is the first human rights convention adopted by the international community in the 21st century, which consists of a preamble and 50 articles, including purposes, definitions, and general principles. The purpose of the CRPD is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to promote respect for the inherent dignity of persons with disabilities. The core content of the CRPD is to ensure that persons with disabilities enjoy the same rights as healthy people and can live as full citizens so that they can make a valuable contribution to society with equal opportunities. It recognizes the full enjoyment of all human rights and fundamental freedoms by persons with disabilities without discrimination, particularly, the right to life, right to protection and safety in situations of risk and humanitarian emergencies, right to equal recognition before the law, access to justice, right to liberty and security, freedom from torture and cruel inhuman or degrading treatment or punishment, freedom from exploitation, violence, and abuse, right to physical integrity, right to liberty of movement and nationality, right to live independently and be included in the community, freedom of expression and opinion, and access to information, right to privacy, respect for home and the family, right to education, right to rehabilitation, right to work and employment, right to participation in political and public life, right to participation in cultural life, recreation, leisure, and sport.

 

The greatest contribution of the CRPD is that it rejects the individual model of disability and establishes a legal paradigm based on the social model. The individual model defines disability as a tragic and defective abnormal state of an individual, and the disabled individual or his family is primarily responsible for his disadvantaged situation. The individual model leads to the exclusion and denial of persons with disabilities in aspects of personality, ability, identity, etc., and the inability to obtain equal recognition before the law. The social model of disability focuses on defining disability as something that is imposed on our functional limitations by means of unnecessary isolation and exclusion of persons with disabilities from full participation in society. It is the barriers and wrong attitudes in the environment that lead to unnecessary isolation and marginalization of persons with disabilities. Starting from the social model, the focus of efforts to solve the problem of disability has shifted from repairing the functional limitations of the “individual” to identifying and removing the barriers in the “social, cultural and political environment” that limit the ability to development of the individual.²

 

The unique position of the Marrakesh Treaty in the system of international human rights treaties is reflected in its practicality. In most international human rights treaties, the content of human rights is mostly declarative, and there are no specific provisions on how to guarantee the realization of these rights. Taking the CRPD as an example, although the treaty provides that persons with disabilities can fully enjoy all human rights and fundamental freedoms without discrimination, they are inevitably faced with various obstacles when exercising their human rights under the CRPD in real life. As for the human rights enshrined in the Convention on the Rights of Persons with Disabilities, the Marrakesh Treaty stipulates that the obstacles encountered by persons with print disabilities when they exercise their right to education, right to read, and right to participate in social and cultural life should be removed. The World Intellectual Property Organization has recognized that reforming the copyright system is not only conducive to realizing the equal rights of the print disabled and other persons with disabilities, improving the educational level of society, strengthening the social integration and cultural participation of persons with disabilities, but also serves as a powerful tool to reduce poverty by providing career growth opportunities for the print disabled. The Marrakesh Treaty aims to provide a template for States to fulfill their obligations under international treaties, so as to help States Parties to the human rights treaties further implement the CRPD and other human rights treaties based on measures already taken.

 

The core of the Marrakesh Treaty is to specify the “limitations and exceptions” for the rights of copyright holders, thus protecting access to published works for visually impaired or print-disabled persons. In modern times, as a fundamental human right, access to knowledge and information has become an essential part of full participation in society; access to knowledge and information is a prerequisite for realizing the full potential of human development because it opens the door to education, employment, good health, and social and political participation. The international community is trying to deal with the shortage of books, which hinders global efforts to achieve inclusion and equality among all nations and peoples.³ Access to books is essential to redressing social inequalities and achieving social and economic development.⁴ Therefore, in the process of implementing the treaty, the specific content of the treaty should be understood from the perspective of human rights, especially according to the Universal Declaration of Human Rights and the Convention on the Rights of Persons with Disabilities, such as the definition of the scope of beneficiaries, scope of authorized entities, and scope of accessible format copies.

 

 

The social understanding of the relationship between copyrights and human rights has been gradually deepened. The promulgation of the Marrakesh Treaty is an embodiment of the social consensus on the relationship between copyrights and human rights. Understanding the attributes of the treaty from the perspective of human rights helps better grasp the nature and function of the treaty and thus ensure its effective implementation.

 

In the initial stage of exploring the protection of human rights in the copyright field, some actors in the United Nations human rights field believed there are direct conflicts between the two systems (the intellectual property system and the human rights system). These actors argued that the extensive protection of intellectual property rights, such as the protection of rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights, makes it harder for countries to comply with human rights treaties.⁵ For example, copyright law establishes exclusive rights for copyright holders to prevent third parties from copying or disseminating protected works. If copyright holders are unwilling or unable to make their works available in an accessible format, such works will not be available to persons with reading disabilities. If there are no applicable exceptions, their rights to freedom of expression, education, and cultural participation will be curtailed. To resolve these conflicts, human rights experts urged States to recognize that human rights take precedence over intellectual property laws and treaties, on the ground that they are more fundamental. Advocates of the “conflict path” encouraged States to “ignore” or modify intellectual property rules if necessary to perform international human rights obligations. The advocates also highlighted the conflict to support the call for better protection of human rights and reform of intellectual property laws and for reshaping the requirements for access to copyrighted works as a right under international law. The conflict path effectively focuses on the influence of intellectual property rights on human rights and the importance of ensuring the availability of copyrighted works, which is a problem ignored by the traditional intellectual property system. But at the same time, the conflict approach tends to overlook the fact that individual innovation and creativity, that is, the goals pursued by the intellectual property system, are also essential to the realization of human rights.

 

With the advancement of the research of international human rights and intellectual property scholars and the development of practice, a growing number of scholars, policymakers, and non-governmental organizations begin to argue for a fundamental consistency in purpose between the two systems, i.e., intellectual property system and human rights system. The consistency of the two solves the problem of how to sufficiently incentivize authors and inventors to create and innovate while giving the public adequate access to their intellectual output. Balancing the interests of copyright holders and social public interests is “a reflection of the human rights thought and public interest principle.”⁶ Therefore, the Marrakesh Treaty limits copyrights to maximize social welfare, based on the balance between public interests (to protect the rights of persons with reading disabilities to education, equal participation, and other human rights) and the interests of copyright holders.

 

The Marrakesh Treaty solves the difficulties of persons with print disabilities in accessing cultural achievements. The Universal Declaration of Human Rights and the Convention on the Rights of Persons with Disabilities aim to eliminate the discrimination against the disabled, provide them with an accessible environment, give them equal opportunities, and ensure their full and effective participation and integration into society, but the scarcity of works in accessible formats has caused serious harm to the visually impaired or print disabled and impeded the realization of the above rights. To ensure that persons with disabilities can equally and effectively enjoy the rights to education and participation in social and cultural life, it is a must to improve their access to works, and restrict the rights of copyright holders, thus improving the access to works for persons who are blind, visually impaired, or have other print disabilities, which is undoubtedly a feasible option.⁷ The core content of the Marrakesh Treaty is the limitations and exceptions of copyrights.⁸ The restriction of intellectual property rights is an important balancing mechanism to adjust the relationship between private interests and public interests in the intellectual property legal system.⁹ When talking about copyright limitations, Paul Goldstein, a famous American copyright scholar and professor at Stanford University, pointed out that the function of copyright use exemption and the statutory license is to weaken the exclusive rights, so as to balance the economic interests of copyright holders and the interests of copyright users, including economic interests and other interests.¹⁰ The copyright limitations in the treaty are also based on the balance between the public interests and private interests of copyright holders.¹¹ In other words, the Marrakesh Treaty explicitly states that although there are conflicts between copyright protection and human rights protection on the surface, the values they pursue are not opposed essentially, which is reflected in the consistency between the interests of copyright holders and public interests.¹²

 

 

The implementation of the Marrakesh Treaty in China is another great progress in the protection of the rights of persons with disabilities. On the one hand, the content of the Marrakesh Treaty is embedded in the legal system of the protection of rights and interests of persons with disabilities in China and forms comprehensive and multi-level protection of the rights of persons with disabilities, such as the right to read and the right to education. On the other hand, to promote the implementation of relevant regulations in China in such a way as to concretize them, so that persons with disabilities can effectively “participate in the cultural life of society, enjoy art and share the fruits of scientific progress.”

 

On March 14, 2004, the Amendment to the Constitution of the People’s Republic of China was adopted at the 2nd Session of the 10th National People’s Congress. The amendment adds Para. 3 “The state respects and safeguards human rights” in Article 33. The Constitution establishes the principle of human rights protection. It is not only of great significance for promoting the development of human rights in China, but also a milestone in the protection of the right to employment of persons with disabilities. The incorporation of human rights into the Constitution links human rights with the basic rights of citizens in the form of the Constitution, making it a value goal of China to respect and protect human rights. According to the constitutional provision that “The state respects and safeguards human rights,” China has formulated laws and regulations to protect human rights, revised imperfect laws and regulations, repealed laws and regulations that conflict with the principle of human rights protection, and incorporated the international conventions related to human rights protection.

 

On March 30, 2007, the Chinese government signed the UN Convention on the Rights of Persons with Disabilities. The CRPD requires States parties to take key measures to implement it and ensure that domestic standards and practices comply with it. On June 26, 2008, the CRPD was ratified by the Standing Committee of the National People’s Congress. According to Article 27 of the CRPD, China is obliged to guarantee the right to employment of persons with disabilities in the following four aspects: (1) Non-discrimination; (2) Accessibility; (3) Reasonable accommodation; and (4) Active measures. China seriously abides by the provisions of the CRPD and has revised and issued many laws, regulations, and departmental rules based on it. China has initially formed a legal system for protecting the rights of persons with disabilities, including relevant laws, regulations, and rules, with the human rights provisions of the Constitution as the cornerstone and the Law on the Protection of Persons with Disabilities as the core.

 

To facilitate the access and use of works for the visually impaired or print disabled, Article 29 of the Law on the Protection of Persons with Disabilities stipulates that government departments concerned shall organize and support the research and application of Braille and sign language, the compilation and production of teaching materials on special education, and the research, production and supply of teaching apparatus and other auxiliary facilities for special education (this is also reemphasized in the Regulations on the Education of the Disabled);¹³ Paragraph 2, Article 43 specifies that the government and society shall organize and support the compilation, writing and publication of Braille books, audiobooks and other reading materials for persons who are blind, visually impaired, or have other print disabilities, establish a special section of Braille books and audiobooks for visually impaired persons in public libraries, offer TV programs in sign language, set up radio programs specially designed for persons with disabilities and add subtitles or narrations to TV programs and movies, according to the actual needs of the visually impaired, to enrich the spiritual and cultural life of persons with disabilities. Paragraph 2, Article 34 of the Law of the People’s Republic of China on Public Libraries stipulates that “Public libraries established by the government shall take into account the characteristics of the elderly and the disabled, actively create conditions and provide documents, information, accessible facilities, equipment and services suitable for their needs.” Article 22 of the Regulation on the Construction of Barrier-Free Environments specifies that “Public libraries established by the people’s government at or above the city level with districts shall set up reading rooms for the visually impaired and provide Braille books and audiobooks, and other libraries shall gradually set up reading rooms for the visually impaired.” Although the above content does not directly or explicitly specify the concepts of “beneficiary” and “authorized entity” covered in the Marrakesh Treaty, they have been, more or less, reflected.

 

After signing the Convention on the Rights of Persons with Disabilities, China has actively implemented it. Under its guidance, China has updated and improved the domestic legal system for the protection of the rights and interests of the disabled and has formed a framework of protection centered on the rights model, at least at the level of legal norms. After the signing of the Marrakesh Treaty, in order to maximize the access of persons with disabilities to accessible format copies and protect their rights to education and development, it is necessary to pay attention to the perspective of human rights based on the copyright treaty and integrate it with the legal system of protection of rights and interests of persons with disabilities in China and other relevant legal systems, so that there is an effective mechanism for the implementation of the Marrakesh Treaty in China.

 

Under the copyright law system, Paragraph 12, Article 24 is a new provision in the revised Copyright Law in 2020. Compared with the 2010 version, it expands the scope of fair use from “transliteration of a published work into Braille and publication of the work so transliterated” to “provision of published works to persons with reading disabilities in an accessible way.”¹⁴ Lyu Shiming, a member of the Standing Committee of the National People’s Congress, point out that the revision of the copyright law is an important opportunity to protect the rights and interests of accessible reading for special groups and promote China’s participation in the Marrakesh Treaty.¹⁵ In the Introduction and Interpretation of the Copyright Law of the People’s Republic of China, relevant personnel of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress acknowledged the impact of the Marrakesh Treaty on this article. They pointed out that the reason for the amendment is to integrate it with the Marrakesh Treaty and expand the scope of beneficiaries, meet the requirements of generalization, universalization, and individualization, adapt to the needs of specific groups, and effectively protect the rights and interests of these special groups.¹⁶ In addition, in order to facilitate the implementation of the fair use provisions, the Copyright Law adds Paragraph 2, Article 50, specifying the circumstances where technical measures may be avoided, such as “Provision of published works to persons with reading disabilities in a manner which is accessible to them and not for profit-making purposes, and the said works cannot be obtained through normal channels.” As a private measure to restrict the contact and dissemination of works, technical measures play an important role in protecting the interests of copyright holders on the one hand and will hinder the implementation of fair use on the other hand. The relevant provisions about avoiding technical measures in Paragraph 2, Article 50 remove some obstacles to the effective operation of the accessibility provisions in practice.

 

The revised Copyright Law in 2020 has demonstrated the concern and protection of the rights and interests of persons with reading disabilities, laying a necessary legal foundation for the implementation of the Marrakesh Treaty in China. After the entry into force of the Marrakesh Treaty, China should revise relevant laws and regulations according to the basic obligations under the Marrakesh Treaty, or formulate special implementation regulations or industry policy norms. This treaty is an international copyright treaty drafted under the leadership of the World Intellectual Property Organization to restrict and make exceptions to the rights of copyright holders, thus protecting access to published works for persons who are visually impaired, or otherwise print-disabled. However, it should be noted that the core aim of the Marrakesh Treaty is to guarantee the right of persons with disabilities to equal participation in social and cultural life and to fully guarantee their fundamental rights and human rights.

 

 

 

According to the definition of “beneficiary” in the Marrakesh Treaty, the beneficiary shall be the following persons with or without any other disability: (1) a person who is blind; (2) a person who has a visual impairment or a perceptual or reading disabilities 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) a person who 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. In implementing the above regulations in China, the following problems should be solved: How should we define the scope of persons who are blind or have low vision or other visual impairments, persons with perceptual or reading disabilities, and persons who are unable to hold or manipulate a book or to focus or move the eyes due to physical disability to the extent that would be normally acceptable for reading? Should the support staff be included in the scope of beneficiaries? Should miscellaneous provisions be set?

 

In the author’s opinion, based on the provisions of the Marrakesh Treaty, the “persons with reading disabilities” mentioned in the Copyright Law should be defined and restricted through judicial interpretation or administrative legislation, and “persons with print disabilities” may be extracted from the “persons with reading disabilities.” Specifically, the “4 + 1” mode can be adopted, namely, the four typical groups: “the blind,” “persons with low vision or other visual impairments,” “persons with perceptual or reading disabilities” and “persons with physical disabilities,” and “persons with print disabilities” under the miscellaneous provisions. In practice, the scope identification of persons who are blind or have low vision or other visual impairments, persons with perceptual or reading disabilities, and persons who are unable to hold or manipulate a book or to focus or move the eyes due to physical disability to the extent that would be normally acceptable for reading is not in line with the current Chinese disability identification standard, feasible identification standards should be provided for legislation and it should not be limited to the diagnostic criteria of medical institutions.

 

It is suggested that “persons with reading disabilities” include: (1) Blind persons who have been recognized and obtained the registration card for people with disabilities according to the disability standards approved by the State Council or persons who have not obtained the registration card for people with disabilities, but have been tested by a hospital or a specialized medical institution at or above the county level with an ophthalmology clinic according to the disability standards approved by the State Council, and recognized that the best corrected visual acuity is less than 0.05 or the field of vision radius is less than 10 degrees. (2) Persons with low vision and other visual impairments who have been tested by a hospital or a specialized medical institution at or above the county level with an ophthalmology clinic according to the disability standards approved by the State Council and recognized that the best corrected visual acuity is lower than the normal vision, and who are unable or temporarily unable to read prints after reasonable medical treatment. For the identification of low vision, if there is no low vision clinic or vision test facility in any county and municipal hospital in the applicant’s regular residence, the vision test report made by medical doctors, optometrists, ophthalmologists, scientific research centers, public interest institutions, and other professionals or institutions capable of low vision testing, with the signature or seal of the tester, can also be used as the basis for the identification of low vision; For the means of “reasonable medical treatment,” the personal financial situation of the applicant, the economic situation and medical level of the applicant’s regular residence, the economic development and medical level of the applicant’s country should all be taken into account. It is not required to use all medical means. (3) Persons with perceptual or reading disabilities who are recognized by university research centers, scientific research institutions, doctors in psychology or cognitive neuroscience, senior practitioners or other professionals or institutions, and who are unable or temporarily unable to read prints after reasonable medical treatment; For the means of “reasonable medical treatment,” the personal financial situation of the applicant, the economic situation and medical level of the applicant’s regular residence, the economic development and medical level of the applicant’s country should all be taken into account. It is not required to use all medical means. (4) Persons who are unable to hold or manipulate a book or to focus or move their eyes due to other physical disabilities to the extent that would be normally acceptable for reading recognized by a hospital or a specialized medical institution at or above the county level with appropriate testing conditions. (5) Persons who are otherwise print-disabled.

 

 

Paragraph 2, Article 2 of the Marrakesh Treaty defines accessible format copies as follows: “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. In implementing the above regulations in China, the following problems should be solved: how should the principles or types of use of “accessible format copies” be defined? Especially, for audiobooks, should movies with narration be included in the scope of accessible format copies? Should commercial availability be set as a prerequisite?

 

In the author’s opinion, the Marrakesh Treaty allows works to be made available not in a particular format, but in any way or form that enables persons with reading disabilities, such as the blind, to use them. Whether this way or form is appropriate depends on the type of disability. Meanwhile, the forms of the accessible format copy should not be limited to the current technical conditions but should be able to cover the possible accessible forms of future technology development. On the question of whether commercial availability should be set as a prerequisite, first, from the social point of view, the repeated production of accessible format copies can be avoided. Compared with other subjects, copyright holders are the first to control works. They take the initiative to provide works suitable for persons with reading disabilities and promote them to the market along with ordinary copies, presenting obvious advantages in time and efficiency. Meanwhile, commercial availability encourages copyright holders, publishers, and other rights subjects from the source to become the main force in providing accessible format copies. Publishers who enter the book market of initial accessible format copies early can not only gain the “first-mover advantage” in this market, but also fulfill their social responsibilities and establish a good brand image and further gain brand loyalty from persons with reading disabilities, and achieve considerable economic benefits.

 

It is suggested that the type of accessible formats in China be stipulated in principle only, and the specific types should not be restricted. That is, the definition of accessible format copies in the Marrakesh Treaty can be directly used for reference, without specifying the types. The above-mentioned audio books, large-print books, and accessible movies can all be included in the scope of accessible format copies. Also, the legislation should set commercial availability as a prerequisite for the production of accessible format copies. Supplementary provisions should be added to the Copyright Law to stipulate that copyright exceptions apply to situations where persons with reading disabilities cannot have access to works of the same form in the market at reasonable prices. The reasonable price should be determined according to the local economic development level and the market demand for specific works.

 

 

The scope of authorized entities truly affects the amount and costs of access to accessible format works for beneficiaries, and further affects the equal rights to education and social participation of persons with reading disabilities. Article 2 of the Marrakesh Treaty clarifies the definition of an authorized entity. “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. But the treaty does not specify directly which institutions must or should be authorized entities. Instead, it is totally up to each member state. Therefore, determining the subject scope of authorized entities has also become a problem to be solved urgently in China. In implementing the above regulations in China, the following problems should be solved: Which institutions should be authorized entities? Should the scope of authorized entities be minimized for protection purposes? How should we eliminate legal risks for authorized entities?

 

From the perspective of the human rights nature of the treaty, our basic position is to expand the subject scope of authorized entities as much as possible without ignoring the legal risks, so as to meet the needs of persons with reading disabilities to the greatest extent. The law authorizes or recognizes the status of authorized entities of existing organizations or institutions as widely as possible, effectively reduces the legal risks they may face, and urges them to legally exercise the rights of authorized entities. According to the current laws and regulations of China, such as the Law on the Protection of Persons with Disabilities, the Law on Public Libraries, the Compulsory Education Law, and the Regulations on the Construction of Barrier-Free Environments, etc., public libraries are defined as organizations that provide cultural services to people with disabilities. In China, public and private primary and secondary schools, private and public universities, and other educational institutions that undertake the function of compulsory education are also the institutions that are obliged to provide accessible education and training services.

 

It is suggested that the relevant implementation rules be listed in an open rather than a closed way, so as to include organizations that have already started to produce or provide accessible format works, as well as the organizations that have not completely started to produce or provide accessible format works as widely as possible. The former type mainly includes China Braille Library, Braille publishing houses, and self-help organizations for persons with disabilities, while the latter type mainly includes public libraries, schools, and independent resource centers for the visually impaired and integrated education centers established by schools. For the former type, it should be noted that self-help organizations for persons with disabilities are civil organizations that help highlight the subject status of the disabled. They are organizations that truly consider the interests of people with disabilities, so it should be ensured that they can exercise their reasonable and legal rights to serve persons with reading disabilities. This is in line with the World Blind Union’s conceptual guidance on authorized entities. Meanwhile, authorized entities should actively adopt technical measures to formulate relevant process regulations, ensure the correct and legal dissemination of the works they provide to the beneficiaries, and respect and protect the property rights and interests of copyright holders from unreasonable infringement while respecting and protecting the rights of persons with reading disabilities to obtain culture and education to the utmost extent.

 

 

Guided by the principle of constitutional human rights, China joined the UN Convention on the Rights of Persons with Disabilities and built a system of protecting the rights of persons with disabilities based on the social model confirmed in the CRPD, namely, improving the situation of persons with disabilities by guaranteeing equal participation and removing barriers. Society should undertake the duty and responsibility of removing barriers, changing backward ideas, safeguarding the rights of persons with disabilities, and raising the awareness of persons with disabilities and their representative organizations as subjects of the cause of persons with disabilities. On this basis, the implementation of the Marrakesh Treaty in China plays an exemplary role in safeguarding the rights of persons with disabilities, especially those with print disabilities. In view of the discussion on the human rights attributes of the Marrakesh Treaty in this paper, the following suggestions are put forward.

 

 

After the entry into force of the Marrakesh Treaty, China should revise relevant laws and regulations or formulate special implementation regulations or industrial policy norms in line with the basic obligations under the treaty. This treaty is an international copyright treaty drafted under the leadership of the World Intellectual Property Organization to restrict and make exceptions to the rights of copyright holders, thus protecting the access to published works for persons who are visually impaired, or otherwise print disabled. However, it should be noted that the core aim of the Marrakesh Treaty is to guarantee the right of persons with disabilities to equal participation in social and cultural life and to fully guarantee their fundamental rights and human rights.

 

Since the provisions of respecting and protecting human rights in the Constitution of China are the basis of the human rights protection system, the principle of human rights protection embodied in the Constitution should be implemented during the concrete implementation of the Marrakesh Treaty and promoted in a unified manner under the guidance of the principle. However, due to the extensive connotation of human rights, it is far from possible to achieve the purpose of protecting the human rights of persons with disabilities only by relying on the principle of human rights protection in the Constitution. Therefore, when implementing the Marrakesh Treaty, the competent authorities may improve the content of laws and regulations according to the principle of constitutional human rights, and systematically connect the legal principles, norms, rules, responsibilities, etc. related to the implementation of the Marrakesh Treaty in various sectoral laws. When necessary, with the protection of the human rights of persons with disabilities as the goal, unified policies and measures in line with the Marrakesh Treaty should be formulated, and legal protection should be provided for promoting the implementation of the Marrakesh Treaty based on fully reflecting the principle of human rights protection.

 

 

Presently, China has revised the Copyright Law and created conditions for the implementation of the Marrakesh Treaty in China. However, China should pay attention to the coordination between the legal system, including the Copyright Law, and the Marrakesh Treaty, adjust the inconsistency of the legal norms, remove the obstacles unfavorable to the implementation of the Marrakesh Treaty in the existing legal system, and provide a good institutional environment for it. For example, for the judicial interpretation and judicial interpretation documents that fail to meet the requirements of the Marrakesh Treaty, violate China’s commitments, or conflict with the revised versions of relevant laws, a comprehensive clean-up should be carried out to ensure the unification and coordination between domestic laws during the implementation of the Marrakesh Treaty, and better give play to the guiding role of judicial interpretation.

 

Departments should also take the initiative to improve the administrative and local regulations related to the implementation of the Marrakesh Treaty. The contents related to the fair use of accessible format works shall be further adjusted in accordance with the revised spirit of the new Copyright Law. Relevant authorities should assess the legality of local laws and regulations enacted for the implementation of the obligations under the Marrakesh Treaty, check the local law enforcement after the implementation of the new Copyright Law periodically, and urge non-compliant localities to make rectifications, so as to ensure the unity between local legislation and relevant laws, and alignment between local law enforcement and the spirit of the relevant laws. While meeting the basic requirements of the new Copyright Law and its relevant rules, local governments may also formulate and implement necessary measures to promote accessible reading services according to their actual conditions.

 

 

To promote the cause of human rights and protect the rights of persons with reading disabilities to have access to culture and education, and keep in line with the Marrakesh Treaty, Paragraph 12, Article 24 and Paragraph 2, Article 50 of the Copyright Law were revised in 2021. However, the Copyright Law only makes broad provisions on the rights to accessible reading that the persons with reading disabilities should enjoy, without giving a detailed explanation of the issues that may be involved, such as how to define “persons with reading disabilities” under the Copyright Law, how to define “accessibility,” how to define the subject who provides works to persons with reading disabilities, and how to ensure that the works provided to persons with reading disabilities are not illegally used by normal readers.

 

To better align the Marrakesh Treaty with the new Copyright Law, it is necessary to formulate relevant implementation rules, which will clarify the scope of beneficiaries, scope of authorized entities, scope of accessible formats, and scope of rights of copyright holders that should be restricted, etc., so as to provide clear legal guidance to persons with reading disabilities and related individuals and organizations. Relevant organizations, such as libraries, schools, and non-profit organizations dedicated to serving persons with reading disabilities, should rely on the strength of alliances or industry associations to issue relevant practice guidelines based on the laws and implementation rules, so as to urge the cause of protecting the rights of persons with reading disabilities to be implemented with high quality and in an efficient way. In the event of a dispute, judicial organs should fully consider the value balance between human rights and copyrights according to the Marrakesh Treaty and the new Copyright Law, fully and flexibly use the fair use provisions under reasonable and legal circumstances, to introduce typical cases with representative and reference value and provide judicial practice guidance for concrete human rights practices in the future.

 

 

As a principled requirement, accessibility is committed to the elimination of environmental, information, or service barriers that are not conducive to the equal participation of persons with disabilities in society. To achieve accessibility, in addition to legislation and policies that fully protect the rights of persons with disabilities, the approach of encouraging the cultural industry to adopt universal design concepts can also be used. Universal design is no longer limited to a certain type of person with disabilities but provides the maximum possible universal products, environments, plans, and service design under the premise of fully understanding the differences of different groups and meeting the needs of a wider range of people. Universal design pursues inclusiveness as much as possible, and implements the principles of equality, participation, and sharing more thoroughly. Universal Design not only values the rights of persons with disabilities to participate equally in social life but also aims to provide design solutions that are convenient for all.

 

During the implementation of the Marrakesh Treaty, China should actively promote the development of the whole cultural industry towards universal design to solve the long-term problem of the lack of accessible format copies. In the future, we will also need the universal design to better serve the needs of all people and create a more inclusive society where every member can participate equally in social life.

 

(Translated by Shen Jinjun)

 

* GUO Rui ( 郭锐 ), Associate Professor, doctor of laws of Renmin University of China Law School. The research and writing of this paper were supported by the project of China Braille Library “Implementation of the Marrakesh Treaty in China”. The writing of this paper benefited from the suggestions and opinions from Professors Han Dayuan and Wan Yong, the comments and suggestions from Professor Cui Fengming, Mr. Cai Cong, and Professors Paul Harpur and Michael Stein, and the support of the graduate students of Renmin University of China He Jiayi, Wang Sirui, Liu Xiaomei, Wen Hui, Zhou Zizhuo, Chen Lu and Wang Jiayi and undergraduate student Huang Ziyi in the data collection and related research. The author hereby expresses his heartfelt thanks to them.

 

1. World Intellectual Property Organization, “The Origin and Interpretation of the Marrakesh Treaty,”

 

2. Cui Fengming, “The Necessity and Value of Embedding Disability Research into Law,” Renmin University Law Review 2 (2020): 287-310.

 

3. For the book shortage or “book famine”, Kaya Köklü, “The Marrakesh Treaty-Time to End the Book Famine for Visually Impaired Persons Worldwide”, 45 IIC-International Review of Intellectual Property and Competition Law 7 (2014): 737.

 

4. Rami Olwan, “The Ratification and implementation of the Marrakesh Treaty for visually impaired persons in the Arab Gulf States,” The Journal of World Intellectual Property 20 (2017): 5-6.

 

5. U. N. ESCOR Comm, on Econ, Soc., & Cultural Rts, Statement on Human Rights and Intellectual Property, 27th Sess., Agenda Item 3, para. 12, U. N. Doc. E/C. 12/2001/15 (2001).

 

6. Audrey R. Chapman, “A Human Rights Perspective on Intellectual Property: Obligations Relating to Item 3, Paragraph 1 of Article 15,” Copyright Bulletin 3 (2001).

 

7. Cao Yang, “The Conclusion of the Marrakesh Treaty and Its Influence”, Intellectual Property 9 (2013): 82.

 

8. Some regional groups and member States refer to the Marrakesh Treaty as the first treaty on limitations and exceptions, rather than the recognition of rights, see Standing Committee on Copyright and Related Rights Twenty-sixth Session Draft Report, WIPO, accessed July 5, 2022.

 

9. Li Yuxiang, “Legal Improvement of Intellectual Property Rights Limitation System,” People’s Judicature 6 (2004): 52.

 

10. Paul Goldstein, International Copyright: Principles, Law, and Practice (London: Oxford University Press, 2001), 292-293.

 

11. The Delegation of Algeria, on behalf of the African group, held that the Marrakesh Treaty is the first step in a long march towards a balanced international intellectual property system, but the system has long focused on the protection of private interests of copyright holders while damaging the wider public interests. The Marrakesh Treaty represents a shift in the intellectual property system. Cao Yang, “The Conclusion of the Marrakesh Treaty and Its Influence”, Intellectual Property 9 (2013): 81; The Delegation of the Islamic Republic of Iran also stressed that limitations and exceptions are basic components of the copyright law and play an important role in balancing the copyright system. See Standing Committee on Copyright and Related Rights Twenty-sixth Session Draft Report, WIPO, accessed July 5, 2022.

 

12. Traditionally, many people have argued that inadequate protection of intellectual property rights is likely to lead to low incentives for innovation. However, from the social point of view, the extensive use of information conforms to social public interests. If the price of works of intellectualcreation is set artificially high and the availability of works is reduced, the usage will be greatly reduced, resulting in a waste of resources. For this contradiction, the statement in the Law and Economics by Robert Cooter and Thomas Ulen is quite representative: “Without legal monopoly, there will not be enough information; while legal monopoly will lead to too little information to be used.” In fact, the copyright law also emphasizes the importance of ensuring the accessibility of works. For example, in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article 7 points out the objective of the treaty: “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.” Article 8 also specifies that the State may take appropriate measures to protect the public interest, provided that they are consistent with the provisions of the treaty. Therefore, in order to achieve the ultimate goal of promoting social and cultural development and encouraging the dissemination of intellectual achievements, the establishment of a special right restriction system is also one of the characteristics of the intellectual property system. The restriction system of rights is actually to prevent copyright holders from over-consuming the public domain in the name of private rights, thus further hindering the public’s proper access to works, and hindering the learning of knowledge and the progress of democratic culture. See Paul Anthony Samuelson, et. al, Economics, Edition 16, translated by Xiao Chen, et. al (Beijing: Huaxia Publishing House, 1999), 185; Liu Chuntian, Intellectual Property Law (Beijing: Higher Education Press, 2015, 5th Edition), 131; Feng Xiaoqing and Xie Rong, “Research on ‘Fair Use’ and Public Interests in the Copyright Law”, Hebei Law Science 3 (2009): 65.

 

13. Article 54 of the Regulations on the Education of the Disabled.

 

14. As the content under the fair use provisions, the interests of copyright holders and persons with reading disabilities should be balanced during the interpretation and application of this article, and the requirements of the three-step test method should be met, namely, (1) special circumstances; (2) not affecting the normal use of works; (3) not damaging the legitimate rights and interests of the copyright holder unreasonably. Therefore, when balancing the property rights of copyright holders and the benefits of persons with reading disabilities, it is necessary to consider which methods can be included in the scope of “accessible methods,” who provides the works, and to whom the works will be provided. See Wan Yong and Chen Lu, “Implementation of the Marrakesh Treaty in China: Theoretical Disputes and Institutional Arrangements”, Human Rights 4 (2022).

 

15. Sun Mengshuang, “Copyright Law Amendment: An Important Step in Building a Strong Cultural Country, ”National People’s Congress of China 10 (2020): 13.

 

16. Huang Wei and Wang Leiming, Introduction and Interpretation of the Copyright Law of the People’s Republic of China (Beijing: China Democratic and Legal Publishing House, 202.