The marrakesh treaty for visually impaired persons: Why a treaty was preferable to soft law

Abstract

This paper addresses the debates leading up to the recently adopted international treaty on copyright exceptions for the visually impaired, the Marrakesh International Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. This treaty was successfully adopted by the World Intellectual Property Organization (WIPO) in June 2013. Leading up to the negotiation of this instrument, multiple UN member states pushed for the instrument to be negotiated as soft law instead of a treaty. We argue that making this instrument soft law would have precluded its success. WIPO thus correctly chose to make this international instrument a treaty rather than a joint recommendation. This paper explains the international need for this instrument, to solve a global "book famine" and protect the access rights of visually impaired people. It then outlines the debate that occurred leading up to adoption over whether the instrument should be hard law or soft law. This debate illuminates that discussions of hard versus soft law need to be situated in context. We explore both related human rights law and other international copyright law to explain how they altered the hard law-soft law calculation in this case. The concluded treaty reflects WIPO's recognition of related copyright law that had been established in other forums. By creating a binding instrument, WIPO has encouraged developing countries to implement the new treaty, towards the goal of assisting those visually impaired persons most in need of an international solution.