Last month, the Brazilian Secretariat of Culture (Secretaria Especial de Cultura) launched a 30 day public consultation on the Presidential Decree regulating the Marrakesh Treaty implementation, ending this week. Contributions can be made directly on the platform or by filling the form on the site.
One of the key questions in the consultation process involves whether Brazil should adopt a commercial availability requirement. The question reads:
“Should Brazil establish a requirement of commercial availability under the terms of Article 4, paragraph 4 of the Marrakech Treaty? Justify your answer.”
The introduction to the question reads as translated (by DeepL) below.
“Question about condition or requirement of commercial availability
This field is dedicated to suggestions and comments about the convenience or not of Brazil eventually making the option to apply the optional restriction provided for in art. 4, item 4, of the Marrakech Treaty to Facilitate Access to Published Works for Blind, Visually Impaired or with Other Difficulties to Access Printed Text. This provision allows States Parties to choose to adopt the limitations and exceptions to copyright provided in the Marrakech Treaty only for works that cannot be obtained commercially and on reasonable terms in a format accessible to the beneficiaries of the Treaty in a given market. Countries deciding to implement the commercial availability clause shall declare the option by notice deposited with the Director General of WIPO – World Intellectual Property Organization. Brazil did not make this option at the time of ratification of the Treaty. “
Last week, the FEBAP (Federal Association of Librarians, Information Scientists and Institutions – Federação Brasileira de Associações de Bibliotecários, Cientistas de Informação e Instituições) held an open discussion on the Decree, available on YouTube. Many of the panelists who spoke on the topic at that session advised against adopting the commercial availability restriction in the implementing law. But it is not clear how the Brazilian government will resolve the matter. Brazil did not make any reservation on this matter when it deposited its ratification instrument with WIPO.
