Access to knowledge has always been at the forefront of the international discourse on intellectual property.[1] The idea that a system designed to encourage creativity and foster innovation must allocate exclusive rights to authors and artists is as old as the Statute of Anne.[2] The same statute, however, provides that this allocation is not without limits, and mandates access to knowledge as a pre-condition to any such allocation.[3] Internationally, since the adoption of the Berne Convention for the Protection of Literary and Artistic Works (‘Berne Convention’), legal regimes have become more attentive to the limits that copyright systems must endorse in order to protect the public interest and the needs of different users.[4] As Numa Droz, the President of the first Berne Diplomatic Conference in 1884, stated:

Consideration also had to be given to the fact that limitations on absolute protection are dictated, rightly in my opinion, by the public interest. The ever-growing need for mass instruction could be met if there were no reservation of certain reproduction facilities, which at the same time should not degenerate into abuses.[5]

No copyright treaty grants absolute rights to any individual. Every treaty contains ‘reservations of certain reproduction facilities’[6] in order to avoid abuses. As a way to translate these reservations into practice and protect the interests and needs of users, sets of limitations and exceptions to the proprietary rights of authors, artists and other creative individuals in their works have been embedded in both domestic and international copyright laws. On the international level, Article 9(2) of the Berne Convention and Article 13 of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) [7] require countries to limit copyrights and confine these limitations or exceptions ‘to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder’.[8] Both articles permit definitional flexibility in the application of a particular limitation.[9] Therefore, specific international agreements, designed to deal with certain exceptions, were not necessary in order for signatory countries of the Berne or the TRIPs to adopt relevant limitations to the needs of a particular group of users.

Despite this, the international community has recently agreed on a specific treaty aiming to limit the exclusive rights of authors and artists and expand the recognition of the rights and interests of a ‘critically underserved population within the global copyright market’,[10] namely the disabled, to access materials protected by copyright. Indeed, leaving the disabled without a legal arrangement specifically tailored to their needs carries the risk of perpetuating cultural inequality and other social wrongs. As one Irish report recently proclaimed, a lack of access rights to the disabled not only ‘curtail[s] the life chances of a great many people who are unable . . . to access and enjoy the full range of cultural materials . . .[;] it reduce[s] the contribution they can make, both in general to society, and in particular to innovation . . . ’.[11] By adopting a unique agreement, the international community sought to alleviate the severe literary famine from which the disabled community suffers.[12] The agreement in question is the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (MVTor ‘theMarrakesh Treaty’).[13]

The Marrakesh Treaty, which Miha´ly Fiscor referred to as a ‘miracle’,[14] symbolizes an attempt to strike a more balanced approach between authors and users;[15] its focus is not solely on the protection of rights but also recognizes the interests of disabled people.[16] Although the MVT is not a ‘comprehensive solution’,[17] it ‘represents a genuine balance among the various stakeholders interests represented in the potentially disparate domains of copyright, human rights and disability’.[18] While some view the Marrakesh Treaty as a human rights treaty,[19] others define it as an intellectual property/copyright treaty.[20] Irrespective of this disagreement, the MVT, as this article demonstrates, is a necessary addition to contemporary copyright regimes; and the fact that it gained the support of powerful members of the international community shows the ability and willingness of that community to respond collectively to new and emerging social needs.

Non-signatories are not exempted from attending to the interests of their disabled members. In 2014, Israel became one of the first countries to amend its copyright law according to the stipulations of the Marrakesh Treaty, and the only non-signatory to do so.[21] The State of Israel, as a non-signatory, constitutes a unique case for three main reasons. First, in contrast to other Berne Convention member states, Israel’s copyright law did not provide an exception for disabled people to use accessible formats of materials protected by copyright. Secondly, even countries that had a particular exception for the disabled were not attentive to the complex meaning of the concept of disability, excluding many disabilities from the scope of the exception they have adopted. Thirdly, the Israeli way of embracing the stipulations of the Marrakesh Treaty showed why the boundaries of intellectual property should not be tied to international agreements only, and that such agreements should be used as a baseline for extending the protection of those they aim to protect.

The argument presented in this article is twofold. First, we present, discuss and evaluate the success of the international community in designing and adopting a unique humanitarian copyright treaty for disabled persons. We claim that because the definitions the Treaty favours are limited, members of the international community are expected to rethink these definitions before adopting the Treaty’s stipulations into their national laws. This expectation, we believe, is also relevant to non-signatories, given the humanitarian nature of the treaty. We then discuss the evolution and structure of the Treaty and provide examples from legal systems that have addressed the rights of the disabled before the Treaty was adopted. The article then considers the Israeli experience, outlining the development of the fair use doctrine critically analysing the amendments made to the Israeli Copyright Act 2007 in light of the Marrakesh vision. Our core objective is to show how Israel used the Treaty as a vehicle to update and modernize its own copyright exceptions to benefit the disabled in general, rather than limit its benefits to the blind, visually impaired, and otherwise print-disabled. We then review useful ideological and practical achievements of the Treaty.

Featured here is the introduction section of Lior Zemer & Aviv Gaon, "Copyright, disability and social inclusion: the Marrakesh Treaty and the role of non-signatories" (2015) 10:11 Journal of Intellectual Property Law & Practice 836. To read the full article, click .

Lior Zemer is a Senior Lecturer, Radzyner School of Law, Interdisciplinary Centre Herzliya, Israel. Aviv Gaon is a PhD candidate at Osgoode Hall Law School, 91��ɫ, Canada.

[1] See eg A Kapczynski, ‘The Access to Knowledge Mobilization and the New Politics of Intellectual Property’ (2008) 177 Yale LJ 804.
[2] The Statue of Anne 1710 is ‘An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors, or Purchasers, of such Copies, during the Times therein mentioned’. See generally H Ransom, The First Copyright Statute: An Essay on the Act for the Encouragement of Learning 1709 (University of Texas Press, 1956). Similarly, the US Constitution empowers Congress ‘to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’. US Constitution, Art I s 8 cl 8.
[3] Ransom, ibid.
[4] Under the three-step-test of Art 9(2) to the Berne Convention for the Protection of Literary and ArtisticWorks (1886), countries enacted lists of exceptions and limitation to copyright. Some, eg the UK and the EU, embraced a closed list of exceptions, while other countries, eg the USA and Israel, adopted an open-ended list. On the differences between the two approaches, see eg L Zemer, ‘The Fall of the Last Imperial Copyright Dominion’ (2011) 60 DePaul LR 1051.
[5] Quoted in M Ficsor, The Law of Copyright and the Internet: The 1996 WIPO Treaties, Their Interpretation and Implementation (OUP 2002) 258.
[6] Ibid
[7] Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) (adopted 15 Apr. 1994, entered into force 1 Jan. 1995) 1869 UNTS 299; (1994) 33 ILM 1197.
[8] Ibid.
[9] The level of flexibility is not unlimited, as the Dispute Settlement Body (DSB) of the WTO, interpreting the three-step-test, declared in the Fairness in Music Licensing Act 1998 (US) (FIMLA). See ‘United States— Section 110(5) of the US Copyright Act’ (15 June 2000), Doc No WT/DS160/R, WL 816081 (WTO) available at https://www.wto.org/english/tratop_e/dispu_e/1234db.pdf (accessed 17 September 2015).
[10] D Conway, ‘The Miracle at Marrakesh: Doing Justice for the Blind and Visually ImpairedWhile Changing the Culture of Norm Setting at WIPO’ in I Calboli and S Ragavan (eds), Diversity in Intellectual Property: Identities, Interests, and Intersections (CUP 2015) 35.
[11] Department of Jobs, Enterprise and Innovation, Modernising Copyright, The Report of the Copyright Review Committee (2013) 66. Available at https://www.djei.ie/en/Publications/Publication-files/CRC-Report.pdf (accessed 17 September 2015).
[12] Conway, above, n 10, 36–41. As F Schroeder, the first vice president, World Blind Union, stated in a panel held on 10 June 2015 regarding the ratification of the Marrakesh Treaty: ‘there is a tendency to think of this [giving blind people access to a novel, leisure reading] as a “nice thing to do”’. However, he stressed, ‘fundamentally, this is a dramatic step toward real integration of blind people into society’. See WNew, ‘WIPO Marrakesh Treaty in Force by Early 2016? Now Part of Bigger UN Process’, Intellectual Property Watch (12 June 2015). Available at http://www.ipwatch.org/2015/06/12/wipo-marrakesh-treaty-for-blind-readers-in-forcein-early-2016-now-part-of-bigger-un-process/ (accessed 17 September
2015).
[13] Marrakesh Treaty to Facilitate Access to PublishedWorks for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (signed 27 June 2013) WIPO Doc VIP/DC/8.
[14] M Fiscor, ‘Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired’ Copyright See-Saw (2013) 2. Available at http://www.copyrightseesaw.net/archive/?sw_10_item=50 (accessed 17 September 2015).
[15] See generally J Reinbothe and S von Lewinski, The WIPO Treaties on Copyright (OUP 2015) ch 18.
[16] Fiscor, above, n 14. In recent years, we are witnessing major changes in the setting of international norms including a heightened awareness of human rights. See recently DJ Gervais, International Intellectual Property: A Handbook of Contemporary Research (Edward Elgar Publishing 2015) 6.
[17] S Fitzpatrick, ‘Setting its Sights on the Marrakesh Treaty: The US Role in Alleviating the Book Famine for Persons with Print Disabilities’ (2014) 37 BC Int’l & Comp LR 139.
[18] C Geiger, Research Handbook on Human Rights and Intellectual Property (Edward Elgar Publishing 2015) 588.
[19] On the relations between human rights and the Marrakesh Treaty, see J Li and N Selvadurai, ‘Reconciling the Enforcement of Copyright with the Upholding of Human Rights: a Consideration of the Marrakesh Treaty to Facilitate Access to PublishedWorks for the Blind, Visually Impaired and Print Disabled’ (2014) 36(10) EIPR 653.
[20] Fiscor, above, n 14, 28.
[21] See Law forMakingWorks, Performances and Broadcasts Accessible for Persons with Disabilities (Law Amendments) No 5774-2014 (enacted 19 March 2014) (Israel) (‘Law forMaking Disabled AccessibleWorks’). It added s 28A to the Copyright Act 2007, and sub-paras 4A(d) and 4C1(a) to the Performers’ and Broadcasters’ Rights Law No 5744-1984 (consolidated version 1996) (Israel). The Ministry of Justice is currently examining whether the Israeli government should sign theMarrakesh Treaty.

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The globalization of culture and creative collaboration, the effect of virtual worlds in dismantling physical borders, peoples’ constant search to share and consume diverse cultural commodities and information, and the success of copyright harmonization through treaties and conventions, legal transplantation and diffusion of norms and principles between states – all contribute to this unity and the nature of copyright as a global discipline. As such, comparative inquiries into the development of copyright norms in other countries, as opposed to less harmonized legal fields, can immensely benefit the process of international harmonization and local debates on the legitimate boundaries of copyright. This article takes the Israeli copyright system as its organizing principle and provides insights from recent Israeli copyright decisions delivered mainly by the Supreme Court. These decisions will remind foreign readers of many of the landmark decisions that they find in their local jurisdiction. The cases examined demonstrate how the Israeli Supreme Court, like the Canadian Supreme Court that shook the foundations of Canadian copyright law, constantly requires to update existing principles, reject obsolete principles and refine the spectrum of copyright ownership, while remaining attentive to the social needs of authors and users. The cases show that learning from other legal systems has a unique normative value. This value is grounded not only in showing that Israeli copyright law is comprehensible and adequate, but in the mechanisms that the Israeli system has developed to resolve complex legal problems with which other systems deal.

Featured here is the first part of an article by . The full article will appear in an upcoming issue of the Intellectual Property Journal.

Dr. Lior Zemer is a Lecturer in Law at Radzyner School of Law and Visiting Associate Professor at Boston University School of Law. He has previously taught at the faculties of law in Leicester and Birmingham, UK and at Osgoode Hall Law School in Toronto. The opinions expressed in this paper are his own.

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The English Premier League requested that internet providers reveal the name of an unknown person who infringed their copyright through online streaming of football games (known as soccer in North America). The unknown individual managed a website – LiveFooty – where he streamed live sporting events. On his website, he wrote: “Hi all! I have created this site, as my personal aim, to be able to watch LIVE football/soccer, basketball matches, etc, without having to pay a cent! Now you can enjoy this too. With LiveFooty, you can watch all the interesting sporting events FREE”

Streaming on the Internet, whether on-demand or live, has become a fundamental channel for communication, sharing of information and as a supplement to traditional downloading. Despite these social advantages, streaming creates serious legal problems. It can amount to an infringement of several of the copyright owner’s exclusive rights, such as the right to communicate the work to the public, and the right to reproduce the work. Despite this, Judge Agmon-Gonen rejected the Premier League’s request and declared that the streaming in this case was lawful and did not infringe copyright, because it did not comply with the statutory definition of broadcasting, and the streaming of live sporting events to the public has a social goal. This brought her to re-balance copyright and declare that users, as opposed to the situation before the enactment of the 2007 Copyright Act, have rights.

On appeal, the Supreme Court overturned the District Court’s decision. The Court held that, although the actual sporting event is not protected by copyright, the production and shooting of such an event is an original work. Streaming is an act of broadcasting within the meaning of section 14 of the Copyright Act. The Court rejected the users’ rights doctrine noting that: “The legal language used in the 2007 Act gives no indication that the legislature’s goal was to recreate the existing balance in copyright and transform defences to rights”. The Court held that streaming of soccer is an infringement and our John Doe cannot find rescue in the fair use doctrine.

Although the Supreme Court was unanimous with regards to the case for infringement, it was divided with regards to revealing the identity of the infringer. The majority agreed that, under the current law, the identity of the person cannot be disclosed. Consequently, the Premier League won only a partial victory. This partial happiness cannot take the Premier League to the bank, because John Doe is still John Doe.

Although I think the Court was right in finding that streaming of a live sporting event is not innocent, I cannot agree with the reasons for rejecting the users’ rights doctrine. Judge Agmon-Gonen was pioneering in her judgment and legal transplantation is a living organism within the Israeli legal system. That was how the Supreme Court imported the US fair use doctrine into Israeli law. Furthermore, the social and cultural implications of strict and narrow interpretations of the newly enacted fair use doctrine dismiss the advantages in this open-ended doctrine; it may end up with unnoticeably re-enacting the closed list of exceptions of the fair dealing doctrine which the legislature found too limited.

Still, on the eve of the Olympic Games and the recent rulings of the Canadian Supreme Court on fair dealings, it remains an interesting question whether streaming of track & field events amount to a user right within the meaning of Judge Agmon-Gonen’s ruling. Speaking of the Olympic Games and Israel, it is interesting to note, from another perspective, a recent confusing decision of the same court issuing an injunction preventing the Israeli Olympic Committee from using a character – Shpitzik (on the left) – as a mascot because it infringes the rights of Israel Education Television in one of their kids TV stars, Kishkashta (on the right) – a singing cactus.

Dr. Lior Zemer is a law lecturer at the Interdisciplinary Center (IDC) of the Radzyner School of Law in Herzliya, Israel. He is also a Visiting Associate Professor at Boston University School of Law. A more detailed publication by Dr. Zemer will follow in the Intellectual Property Journal (IPJ) later this year.

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