A Second Marrakesh Miracle?

As someone intent on reforming copyright law, so that it can begin to serve open access to research as well as it currently serves exclusive subscription access to research, one obvious challenge is research’s international basis at every level. How can one expect copyright changes, which necessarily take place at a national level, to facilitate research’s global circulation?

Before responding to this vital question, allow me to briefly address why change is needed and that change I am recommending. The value of open access to humankind has been forcefully stated by Alondra Nelson, head of the White House Office of Science and Technology Policy: “When research is widely available to other researchers and the public, it can save lives, provide policymakers with the tools to make critical decisions, and drive more equitable outcomes across every sector of society” (August 25, 2022).

The problem is that, despite widespread agreement that science benefits from open access, our progress toward sustainable, universal open access continues to be slow, uncertain, and fragmented, while growing increasingly complex and expensive. The scholarly publishing market is not working, as markets should, to deliver a desired good at a fair price. With this shared goal of open access, publishers are venturing into new territories beyond the reach of the copyright protections and incentives that serve subscriptions so well. This contributes to publishers dragging their feet, while they and funders devise legal workarounds that reflect the lack of a clear path forward to sustainable universal open access.

In response, as regular readers of this column will recognize, I propose the classic copyright remedy for market failure, namely, statutory licensing. This would require, as I have spelled out elsewhere, that research publications be made immediately open access, for which their publishers are to be fairly compensated by the publication’s institutional users and funders. My inspiration here is the century-old music industry’s statutory licensing, which, for example, calls on Copyright Boards and Judges to periodically set a fair market fee structure.

While this licensing works well internationally with music, particularly American music (as restaurants everywhere attest), open access to research poses its own particular challenge. Making research publications open in one country makes them immediately available everywhere – the very point of open access – and well beyond the scope of that country’s ability to ensure publishers are fairly compensated. How can such a system be successfully initiated and implemented?

Enter the World Intellectual Property Organization’s (WIPO) Marrakesh Treaty (2013). Here is an international copyright treaty that has managed to “facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled” on a global basis. The Treaty, which put an end to what had been termed a “book famine” for a segment of the population, served as a starting point for copyright change, rather than the more typical use of treaties to extend existing legislative changes across new jurisdictions. It lays out a set of mandatory copyright limitations and exceptions that its signatories agree to abide by, which include unique cross-border access terms.

The Marrakesh Treaty now has 91 signatories. During its initial five-year implementation period, some countries introduced new legislation modeled on the Treaty’s model, others regarded their signing as instituting the treaty’s legal terms. It was so innovative and achieved against all odds that it was referred to as the “Marrakesh Miracle.” Here was an intellectual property treaty that advanced human rights, including access to knowledge (A2K), on a global scale, rather than following the more typical path of strengthening property rights.

Now what made such a breakthrough possible is that the Treaty applied to a notably narrow population. But with the Marrakesh precedent in place – and without taking anything from the years of work that go into establishing any treaty – a case can be made for applying its model to amending copyright in support of open access to the narrow swath of works that research publications represent within copyright.

Certainly, a similar human rights argument can be made for open access, following the UN declaration that “everyone has the right freely… to share in scientific advancement and its benefits.” And rather than an exception or limitation of copyright, statutory licensing strengthens publishers’ copyright protection. It meets the interests of each stakeholder in scholarly publishing, including the sustainability of publishers and libraries, while advancing the common good that research and scholarship represent.

Given how the basis of the Marrakesh Treaty was first proposed in 2009 by Brazil, Ecuador, and Paraguay, in association with the World Blind Union, Canada might well consider being a leader for change by joining forces with other countries to initiate discussions of a new open access treaty. The only downside I can see is how, if this new treaty were to succeed (certainly after considerable effort), the Marrakesh Treaty’s standing as a “miracle” would be diminished. Still, the gains in knowledge and the human right to know, as well as the further proof of what the treaty achieved for humankind, would surely outweigh the loss of this alliterative, if archaic, honorific.

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