Sharing vision - Bringing Empowerment

Discussion on the Compatibility between Intellectual Property Law and Marrakesh Treaty Regarding the Issue of Accessibility of Publications to People with Disabilities

  • Perform: Phuong Anh (Translator: Nhan Nguyen)
  • 28/10/2021

Currently, Vietnam is in the process of advocating and completing relevant regulations to follow the procedures for entering into Marrakesh Treaty. These include some regulations on accessibility of publications to people with disabilities (PWDs) under current Intellectual Property Law (issued in 2005, amended and supplemented in 2009 and 2019) and compatibility with provisions in Marrakesh Treaty. To contribute to the completion of regulations of Vietnamese law, in this article, the author will introduce some basic features and evaluate the compatibility between the new Draft Intellectual Property Law related to the issue of accessibility of intellectual property works to PWDs (October 4, 2021) and Marrakesh Treaty.

1. A brief overview of Marrakesh Treaty and Vietnam's preparation to become a party to the Treaty

Marrakesh Treaty was ratified in June 2013 and entered into force in September 2016. The Treaty is an agreement between countries that have ratified or become parties to regulate the law on copyrighting, converting, distributing, increasing the number of publications in accessible formats and sharing accessible materials across the country and across borders so that the blind and PWDs who cannot read can access such publications. According to estimates of World Blind Union, people with visual impairment have only 1 in 10 chances of going to school or securing jobs. Blind people or people with visual impairment can only read less than 10% of the publications.[1] According to the results of National Survey on PWDs published by General Statistics Office in January 2019, in Vietnam, out of about 6.2 million PWDs, there are 1.03 million people with visual impairment and 0.93 million people with hearing loss.[2] Thus, the need to access publications of PWDs in Vietnam is not small, and signing Marrakesh Treaty is necessary and certain.    

We have known that, up to now (October 2021), Vietnam has not entered into the Treaty. Generally speaking, Vietnamese law is always aimed at being in line with regulations of international law in order to ensure the equality for everyone, including PWDs. The policy on speeding up the process of preparing documents and other necessary conditions for submission to competent state agencies for consideration of entering into Marrakesh Treaty has been included in Prime Minister’s Decision No. 753/QĐ-TTg dated June 03, 2020 with a view to facilitating the access of blind people and people with visual impairment and other PWDs who cannot read to World Intellectual Property Organization’s published works.[3] Simultaneously, the content of relevant Vietnamese legal documents, especially Intellectual Property Law, is also being actively commented and amended.

2. Comparison between the content of the Treaty and relevant basic provisions of current Intellectual Property Law

Article 3 of the Marrakesh Treaty stipulates that[4]:

A beneficiary person is a person who:

(a) is blind;

(b) has a visual impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or

(c) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading;

Regardless of any other disabilities.

By comparison, Vietnam Intellectual Property Law currently also includes provisions related to the basic content of Marrakesh Treaty on translating works into Braille or another language for people with visual impairment. Specifically, at Point i, Clause 1, Article 25 of Intellectual Property Law, one of the cases where published works can be used without asking for permission, paying royalties and remunerations is “Translating works into Braille or another language for people with visual impairment”. However, compared to Marrakesh and other PWDs-related documents, the content of current Intellectual Property Law still has some limitations which need to be amended and supplemented as follows:

Firstly, regarding the formats of works for accessibility to PWDs.

In accordance with Marrakesh Treaty, the parties shall include in their national laws the restrictions or exceptions of the right to reproduce, distribute and make available to the public under WIPO Copyright Treaty (WCT), to facilitate the availability of works in “accessible format copies” (copies in an alternative manner or form which allows beneficiaries to access the works, including feasible and comfortable access like people without visual impairment or print disabilities)[5] to beneficiaries. Therefore, the formats of works are not limited to Braille or another language only for people with visual impairment, but also include many other forms for people with other disabilities.

Secondly, regarding the wording in PWDs-related regulations.

In accordance with Law on Persons with Disabilities 2010 and Decree No. 28/2012/NĐ-CP providing guidance on Law on Persons with Disabilities, there are 06 types of disabilities (motor impairment; hearing and speech impairment; visual impairment; mental disability; intellectual disability and other disabilities)[6], and there is no definition of “people with visual impairment”. In this case, in order to ensure the uniform implementation of regulations of Vietnamese law and compatibility with regulations of Marrakesh Treaty, it is necessary to amend the wording in Intellectual Property Law by changing the term “blind people” to “people with visual impairment”.

Thirdly, regarding the issue of beneficiaries in regulations on accessibility of works to PWDs.

According to Clause 3, Article 2 of Decree No. 28/2012/NĐ-CP, “visual impairment” is defined as a state of decreasing or losing the ability to see and perceive light, colors, images and objects in normal lighting and environmental conditions. Thus, Vietnam’s current “visual impairment” definition is compatible with Points (a), (b), Article 3 of Marrakesh Treaty which refer to a person with visual impairment as a person who is blind; have a visual impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability.

However, according to the definition of a beneficiary (a person with disability) at Point c, Article 3 of Marrakesh Treaty, beneficiaries include people with physical disabilities and other disabilities (being unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading). Hence, beneficiaries of the right to use published works without having to ask for permission, pay royalties and remunerations are not limited to people with visual impairment as prescribed by current Vietnamese law, but also include people with motor impairment and other disabilities who cannot read print, such as: people with hearing and speech impairment who have difficulties in reading and writing; people with disabilities who have cognitive and learning difficulties, etc. Therefore, it is necessary to broaden the scope of beneficiaries and exceptions related to intellectual property for publications with accessible formats.

3. Some new points in Draft Intellectual Property Law (October 04, 2021) related to the issue of ensuring the rights of PWDs to access intellectual property works

In order to properly adopt the regulations of Marrakesh Treaty in Vietnam, it is first necessary to understand correctly the definition of a person with disability (as a beneficiary) as stated in Marrakesh Treaty and regulations of Vietnam Intellectual Property Law and Law on Persons with Disabilities. In Draft Amendments and Supplements to Intellectual Property Law dated October 4, 2021 (the Draft), regulations on exceptions for non-infringement of copyright for PWDs. Accordingly: “PWDs, caregivers and people responsible for taking care of PWDs have the right to copy, perform and deliver accessible format copies of works when they have legal access to the originals or copies of works.

An accessible format copy is a copy of a work in an alternative manner or form for PWDs.

Accessible format copies are only for personal use by PWDs and can include appropriate adjustments made to works, but no other changes should be made other than necessary changes to enable PWDs to access works….”[7]

It can be seen that the content in Draft Intellectual Property Law dated October 04, 2021 has overcome the limitations on PWDs’ access to published works, from forms to beneficiaries compatible with Marrakesh Treaty. Specifically:

Firstly, regarding the formats of works for accessibility to PWDs.

Instead of only referring to the translation of works into Braille or another language for people with visual impairment, the content of the Draft stipulates that works in accessible formats for PWDs are “published in alternative manners or forms for PWDs”. This regulation does not limit works for PWDs to only Braille or another language aimed at people with visual impairment, but it is flexible to suit other PWDs who cannot read print.

Secondly, regarding the wording and beneficiaries in regulations on PWDs’ access to works.

In the new regulations in the Draft, the phrase “people with visual impairment” is no longer used, instead “PWDs” is used. This regulation has not only overcome the inconsistent wording of Intellectual Property Law and other specialized legal documents related to PWDs in Vietnam, but also lifted the restrictions on beneficiaries of the right to enjoy exceptions to no copyright for PWDs, including not only people with visual impairment, but also people with other types of disabilities who cannot read print and have access to published works.

Thus, Vietnam Intellectual Property Law currently has a number of limitations which need to be reviewed and amended to be compatible with Marrakesh Treaty, and Draft Intellectual Property Law dated October 04, 2021 has handled such problems. The approval of the content related to “Exceptions to no copyright for PWDs” in the Draft will be a big step forward in the Vietnam’s entering into Marrakesh Treaty, create opportunities for PWDs to access published works, deal with PWDs’ “hunger for books” and contribute to further ensuring PWDs’ rights in the society.

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[1] “Advocating ratification of Marrakesh Treaty” (2016), Website on Disability Rights, at: https://www.globaldisabilityrightsnow.org/en/tools/v%E1%BA%ADn -%C4%91%E1%BB%99ng-ph%C3%AA-chu%E1%BA%A9n-hi%E1%BB%87p-%C6%B0%E1%BB%9Bc-marrakesh, updated on October 17, 2016.

[2] “Vietnam’s National Survey on People with Disabilities” (2016), General Statistics Office, Statistical Publishing House (2018) at: https://www.gso.gov.vn/wp-content/uploads /2019/04/Baocao-nguoikhuyet-tat.pdf, accessed on October 15, 2021.

[3] Appendix on Plan to Develop Documents for the Implementation of Directive No. 39-CT/TW dated November 01, 2019 of the 12th Central Committee Secretariat of the Communist Party of Vietnam on strengthening the Party's leadership in PWDs-related practice (Issued with Prime Minister’s Decision No. 753/QĐ-TTg dated June 03, 2020), No. 21.

[4] The original English version is as follows: (A beneficiary person is a person who:

(a) is blind;

(b) has a visual impairment or a perceptual or reading disability which cannot be improved to give significantly equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to significantly the same degree as a person without an impairment or disability; or

(c) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading;

regardless of any other disabilities).

[5] Marrakesh Treaty, Point (b), Article 2.

[6] Clause 1, Article 3 of Law on Persons with Disabilities 2010 and Article 2 of Decree 28/2012/NĐ-CP.

[7] “Draft Law Amending and Supplementing a Number of Articles of Intellectual Property Law”, Online Draft, National Assembly, at: https://duthaoonline.quochoi.vn/Pages/dsduthao /chitietduthao.aspx?id=7371, Article 25a, updated on October 04, 2021.