Today the PIJIP held a panel on the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. The people involved in the negotiations explain that from the start of the diplomatic conference, it appeared that the treaty would not be successful. So how did the “miracle of Marrakesh” happen? Here’s my liveblog about how the panelists saw it.
[Note: Obviously everyone on the panel has an interest in the history here, so take this with a grain of salt. ]
Justin Hughes begins by explaining that negotiating the treaty as much more difficult than it should have been. Interestingly, it wasn’t the publishers who were most opposed to the Treaty. Ruth Okediji noted that
The publishers who are going to be most affected were the least outspoken in terms of expressing you know, comments that would create a push back at the political level.
The negotiation process was difficult for two related reasons. First, it was a battleground for disputes between developed and developing countries that percolates throughout WIPO. Okediji expanded on this, particularly from the perspective of the Africa group, explaining that
“within WIPO there’s been a longstanding coalition of countries that really were concerned I think both about WIPO and the processes at WIPO.”
For the Africa group, then, it became important that they did not want to see a splintered treaty for the visually impaired, rather than pushing for a larger package of reforms that would deal with public interest concerns that were material to socioeconomic development across the range of IP. Luis Villaroel, from Universidad Mayor in Chile, explained that changing the culture of global IP discourse was critical:
you have to change the culture and if we change the culture, we will not only be solve the problem for the blind but also for the libraries for educators and so on.
This, of course, was precisely what copyright owners were worried about. Okediji: this “was more scary to many industries than anything else because to characterize this as a human rights treaty really opens the door to more ways” to limit IP than “those who were concerned about the normative changes … were comfortable with.” Publishers and the motion picture industry were particularly concerned about what kind of precedent the Treaty was going to set. Scott Labarre noted that this is a human rights treaty, not a copyright treaty. Chris Marcich, from the EMEA, responded that not only access but also authors rights are fundamental rights, so they “tried to contribute constructively to a process that did what needed to be done and what had to be done in which we had a responsibility to do without doing damage elsewhere.” Marcich continued:
the principles that were at stake that some were trying to undermine are fundamental to the existence of a sector that is important not only to this country’s interests but [others as well]. This is, this was a difficult process. It’s one in which our motivations were continuously challenged.
In this context, the motion picture industry had to work hard to demonstrate its commitment to the treaty:
we demonstrated that we were committed to getting a treaty that did what was needed and what was called for … in the circumstances but [did] not make unnecessary sacrifices.
Jamie Love said that there was a really interesting split in the negotiations: while most WIPO disputes are north/south, there was a split between the US and almost everyone else. The U.K., Switzerland, Northern European, even Japan joined the positive side of the treaty “within the first couple of hours of the substantive negotiations”.
So how did the ‘miracle of Marrakesh’ happen?
Nearly everyone agreed that the NGOs played a crucial role – particularly NFB, WBU, KEI, the Open Society Foundation, and the library associations. Okediji pointed out that
without the support for the NGOs, the robust kind of communication that we were getting and the representation and pressure would not have occurred.
With US lobbyists isolated, from Love’s perspective, the negotiations really shifted once KEI, WBU, and others and the mainstream press started to highlight opposition to the treaty. Love asserted that the copyright industry, broadly defined, were reluctant to be publicly seen to oppose a treaty for the blind, and that there was a real change when the Washington Post published a full page story on lobbying by the industry. At the same time, KEI was running campaigns naming and shaming the CEOs of companies like General Electric, Exxon, Monsanto, Patten Caterpillar with large patent portfolios who were opposing the treaty for no direct reason. Stevie Wonder promised to fly to Morocco to put on a concert if the Treaty was successfully concluded. The WBU held a press conference explaining how important the issue was, which some panelists thought had a significant impact. Hughes, on the other hand, said that “when you’re negotiating 15 hours a day, you don’t pay much attention to anything else” – so there was “not a lot of awareness” of the press conference or other external lobbying.
A somewhat alternate history presented by the panel was that everyone was motivated by a strong sense of goodwill. Some panelists suggested that one reason the treaty was finally concluded may have been that Moroccan Minister of Communications “made an impassioned speech to the delegates” and threatened to close the airports. Some panelists thought that this joke actually played a significant role, in that the Moroccan Government really wanted to get a positive outcome, which created some momentum and goodwill around the negotiations.
Either way, the Treaty has now been concluded; it’s time to increase pressure on national governments to actually ratify it and make the necessary changes to domestic law.