Allan Rocha de Souza [1], Alexandre de Serpa Pinto Fairbanks [2], and Wemerton Monteiro de Souza [3]
Intellectual Property Watch, Link (CC-BY-NC-SA)
The Marrakesh Treaty, first of its kind, will enter into force three months after the deposit of the instruments of ratification or accession by 20 eligible countries. So far, thirteen have done so. Brazil, which was one of the main proponents and negotiators, deposited its ratification of the treaty on December 11, 2015, after the yearlong internal legislative process. The key question we are trying to face here is how the ratification of this treaty may impact Brazilian copyright legislation and the interpretation of the limitations.
The main goal of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled is to establish set mandatory limitations to ensure access to printed material for the benefit of the visually impaired.
The Brazilian Constitution establishes the ratification process of international instruments, and there is a key difference between human rights ones and others, both in respect to the proceeding and to its positioning within the legal system.
The Constitutional Amendment n. 45, of 2004, adds a third paragraph to Article 5 and states that: “International human rights treaties and conventions which are approved in each House of the National Congress, in two rounds of voting, by three-fifths of the votes of the respective members shall be equivalent to constitutional amendments.” (See the link to the Brazilian Constitution in English at the Supreme Court website, here [pdf]. These are the same proceedings necessary to any constitutional amendment (Art. 60). On the other hand, all other treaties are to be approved by regular majority voting and are akin to any federal legislation.
As can be noticed, human rights have a special place in the Brazilian legal system, which is also opened to international human rights instruments. A key decision taken in 2008 by the Supreme Court on the case n. 466.343 reached the conclusion that the HR treaties ratified before 2005, when the new proceeding was established, are not equivalent to constitutional amendments, but are to be given “supra legal status.” That is, lower than constitutional norms but higher in stature than ordinary legislation. Such a decision reassures their special place within the system.
Related to the Marrakesh Treaty in terms of its content, the UN Convention on the Rights of People with Disabilities, in Article 30 obliges the parties to ensure access to cultural material in accessible formats, and, in this sense, establishes duties that go beyond the restricted goals of the Marrakesh Treaty, since it does not limit itself neither to printed material nor to the benefit of the visually impaired only, but includes basically all sorts of cultural expressions and disabilities.
The UN Convention was the first to be submitted to the constitutional amendment process and will necessarily interact with the Marrakesh Treaty in promoting its goals.
On November 04, 2014, right after the presidential elections resulting in a second term for Dilma Roussef, the Presidency sent the Marrakesh Treaty text to Congress for consideration.
In the House of Representatives (513 seats) it was submitted to the Commission on Foreign Relations; People with Disabilities; Culture; and Constitution and Citizenship, where it received recommendation for approval as a Constitutional Amendment. In the first of the two rounds of voting, on August 20, 2015, it achieved 341 votes for and only one against. It was finally approved unanimously by 452 representatives on September 8 in the second round of voting (see the whole process here).
Once in the Senate (81) seats, it was sent to the Commission on Foreign Relations, where it was approved and sent to the Senate floor. On November 24, 2015, in two rounds of voting, the treaty was unanimously approved in the first round by 57 senators and by 52 in the second. On December 1, the President signed the ratification of the treaty, with the status of Constitutional Amendment.
Finally, following the approval of the UN treaty, federal legislation for the broad inclusion of people with disabilities entered into force as of January 4, reaching the cultural and technological realms as well.
The legislation (Law n. 13.146/15) guarantees in Article 42 the right of access to cultural products in accessible formats and, even more interestingly, on paragraph 1 it states that “it is forbidden the refusal to offering intellectual works in accessible formats to people with disabilities, under any argument, including under the allegation of intellectual property rights protection.”
On the one hand, the UN treaty provides for the higher goals of comprehensive inclusion of people with disabilities, from physical access to technological, educational, political and cultural access. On the other, the Marrakesh Treaty details the proceeding for the specific cases of printed material for the visually impaired.
Furthermore, the federal legislation enacted to assure the full implementation of the UN treaty puts boundaries on the IPR maximalist arguments and imposes accessible formats for all cultural products in relation to all sorts of disabilities.
Since human rights are the core of the Constitution and of the entire system, within the national legal system both the UN treaty as well as the Marrakesh Treaty are constitutional amendments of a special kind, as it is unconstitutional to even have a legislative project to restrict or abolish any of the established rights (Art. 60, § 4o, IV).
They will necessarily interact and reinforce each other, enhancing the normative power of both. And as constitutional amendments with direct and immediate application within the entire system they will impact directly any federal legislation, including copyright law, deeming unconstitutional norms and interpretations that conflict with it.
The first likely impact will be on the interpretation of copyright limitations by courts, and is expected to consolidate the leading judicial interpretation establishing that copyright limitations must be interpreted extensively, since they represent a balance between copyright exclusivity and other fundamental human rights.
However, there is also a chance that it will spark greater awareness of the important role limitations play in balancing copyright exclusivity and, hopefully, lead to a more comprehensive reform of Brazilian copyright limitations, excessively restrictive in its terms.
It is clear that Brazil has embraced the broad social development goals of supporting and providing for cultural inclusion of all people with disabilities. What is not so clear is how the cultural industry lobby is going to react and how successful they will be in restraining, through regulation, the access to cultural products and expressions in accessible formats, therefore reducing the practical scope of the treaties. We can foresee interesting times ahead!
[1] Professor and Researcher on Copyright and Cultural Policy at Rio de Janeiro Federal University (UFRJ) and on Civil law and Intellectual Property at UFRRJ/ITR Law School . Author of the books “The social function of copyright” and “Cultural Rights in Brazil”. e-mail: allanrsouza@gmail.com.
[2] Law School Student and Junior Researcher on Fundamental Rights and Private Relations at UFRRJ/ITR Law School. e-mail: wemertonmonteiro@hotmail.com
[3] Law School Student and Junior Researcher on Fundamental Rights and Private Relations at UFRRJ/ITR Law School. e-mail: alexandre_spf@hotmail.com
