[Cross posted from IP-Watch, Link (CC-BY-NC-SA] The supposedly impossible happened: The Marrakesh Treaty entered into force on 30 September, three months after reaching the necessary minimum of 20 ratifications. By then, 22 countries had done so – two more did so during the Marrakesh Assembly. It is the first Treaty to recognize beyond any shadow of doubt that the limitations are essential parts of the copyright system, necessary to its balance and even survival, and, as put by WIPO Director General Francis Gurry, the Marrakesh Treaty “can now begin boosting the number of specially adapted texts for the benefit of blind and otherwise print-disabled people around the world.”
The thankful words of David Hammerstein, speaking for the World Blind Union, echo the international civil society hopeful expectations of having the Treaty move forward and become really effective.
Brazil is internationally recognized at WIPO as being one of the leading delegations in the promotion and approval of the Treaty, as witnessed at the 2013 Diplomatic Conference held in Marrakesh. Such recognition came formally as the new Minister of Culture of Brazil was named the chair of the Marrakesh Assembly.
Before, Brazil also had played an important role in the approval of the development agenda, changing the WIPO path towards a more balanced and inclusive attitude. The Marrakesh Treaty is a pragmatic result of such efforts.
It would be natural to expect the Brazilian delegation to be proud of such achievements. However, the high profile presence of Brazilian Minister of Culture and his assistants may be a cause for embarrassment not celebration.
For one reason, as widely noticed in the international press, Brazil is going through a turbulent political process by which the incumbent President was ousted – a good summary of the issues was given by The Guardian.
The new incumbents have proclaimed in their discourses the main intention is to foster the industry and economic activity, but, instead, it looks more like a plan to replace the public interest for an all-for-corporate-interests defense. Citizenship, democracy and the public interest would be the main victims.
But even worse for copyright and the healthy treatment of the limitations is the strong suspicion that the Minister of Culture represents the worldview and the interests of the Corporations that consistently opposed the Treaty.
In 2000, there were only two servers in charge of copyright in Brazil. Obviously there was no possibility of developing any copyright policy, for sheer lack of human-power, which also represented the interest of the Government then in charge of not having any copyright policy or public discussions on the issues at all.
In 2003, it was an upgrade of the issue, with copyright becoming one of the central issues of new government (Lula) and Minister (Gilberto Gil). Other upgrades in responsibilities and personnel happened in 2006, 2009 and 2013 with the approval of the Copyright Law revision on Collective Management (Law n. 12.853/13), broadening its duties to include supervision, mediation and arbitration.
The new regulation on collective management was the result of the National Cultural Policy Plan, approved in 2010 (Law 12.343/10), which formalized the copyright policy objectives.
During the last 13 years, the newly (there existed one bureau during the 1980s, made extinct in 1991) organized Copyright Office (Diretoria de Direitos Intelectuais), structurally inserted in the Ministry of Culture, implemented for the first time a series of policies that fostered the discussions of the copyright law and system, brought new actors into the debate and built bridges for dialogue among different stakeholders.
The Marrakesh Treaty is part of those policies, which started being pursued before becoming legally mandatory for the government and its representatives.
In another article here at Intellectual Property Watch, I dealt with the ratification process of the Treaty in Brazil, when we saw it was approved as a Constitutional Amendment.
However, so far, it has not yet been sent for promulgation; no proposal for copyright law amendment has been sent to Congress; the Brazilian blind associations have not been invited over to WIPO; no entity has been recognized for providing accessible works; and no accessible book has been made available under the Treaty terms.
Certainly these omissions and very slow pace on moving it forward cannot be blamed solely the new administration. Neither on the older, since the Treaty was only ratified at the end of 2015 and a political hurricane took over the country throughout 2016 – and it is still not over.
However, a sure sign of the surreptitious intentions of the new government was the immediate reduction in about 40% of the Copyright Office personnel. Arguing such shrinkage was due to budgetary contingency, it included the dismissal of the most experienced public servants from the Ministry. It is important to notice that the supposed savings are insignificant, since most costs of the office are related to tenured public servants which cannot be dismissed and are then transferred to other government bodies.
It is also significant that the copyright bureau director (Rodolfo TsunetakaTamanaha) comes from a history of services at the National Council on Combating Piracy (Conselho Nacional de Combate a Pirataria), which is composed by right-holders associations in a pro-maximalist perspective on copyright and no regard for limitations, as well as government representatives.
Another indication we should be attentive to is the new organizational layout of the Ministry. Within the Ministry structure, copyright moved from being under the umbrella of “cultural policy” towards a “cultural economy” umbrella. Under the discourse of promoting the economy there will likely be a return to the promotion of the one-sided perspective on copyright we all have seen before: maximalist, non-harmonious, unbalanced. We have seen that before!
As stated in IP-Watch, “Marcelo Calero, new Minister for Culture of Brazil and newly named chair of the Marrakesh Treaty Assembly, said it is the second time in Brazil’s history that a treaty is incorporated in the Brazilian’s legislation with a constitutional amendment status. The treaty is crucial to fulfill public policy goals related to providing equal opportunities for citizens all over the world, he said. At the same time, the treaty does not harm the legitimate interests of authors and right holders, as the treaty only intend to provide copyright exceptions to specific beneficiaries. ‘It’s a win-win situation that benefits all,’ he added.”
It is symptomatic the emphasis given to the interests of the right-holders and the secondary dimension to the limitations and the public interest. In this view, promoting the economy will equal reducing the already skinny limitations. This is what we should expect from Brazilian officials in the very near future.
My personal bet is that Brazil will use the Chair position not to foster the implementation of the Treaty, but instead to slow it down and empty it out, while at the same time having a discourse of enhancing it.
What we have in power now is a very different Brazil from the one the world saw in the past decade or so. It seems the country is back to a subservient position in which it will speak for the interests of the developed countries in prejudice of the developing ones for which it had become one of the voices, and, at the same time, will try to maintain its discourse of inclusiveness.
The future will tell if we are correct or not, but for now, everyone concerned with balance and harmonization between public and private interests in Copyright (and other IP-related issues as well) should keep a close eye and beware of the new Brazilian representatives!
