As a consequence of the negotiation and signature of the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled” (hereinafter, “Marrakesh Treaty”) –which recently entered into force, México, as a contracting party, amended its Federal Law of Author’s Rights (hereinafter, “LFDA”) to add a regulation in this respect. Said amendment was published on March 17, 2015, and consisted in adding an eight (VIII) section to article 148 LFDA (hereinafter, “article 148 VIII LFDA”); this section allows literary and artistic works to be published, without authorization from the patrimonial rights holder and without remuneration, provided that the normal exploitation of the work is not affected, the source is cited, and the work is not altered.
Nevertheless, although it may appear that this amendment complies with the standards established in the Marrakesh Treaty, we consider that the legislator aimed to, on the one hand, restrict the scope of the limitation, and on the other hand, broaden its scope; thus rendering the terms of the limitation unclear, leaving aside important details.
In particular, it is noted that the limitation is directed to just one of the author’s patrimonial rights: the right of publication, apparently ignoring other patrimonial rights such as, right of distribution and reproduction. In fact, the Marrakesh Treaty establishes that the limitation shall be relative to the right of reproduction, the right of distribution, and the right of making available to the public (see article 4.1.a), and also imposes obligations on the cross-border exchange of works (which concerns to the distribution and even the importation rights). It is questionable that said author’s rights were not included in article 148 VIII LFDA, as this lack of inclusion may allow that disputes arise with respect to the activity covered by the limitation, as well as with the compliance of the Mexican State with the Marrakesh Treaty obligations.
Likewise, there is also inconsistency with regard to the kind of works that the cited new legal provision includes. The article 148 VIII LFDA, speaks in a general manner about artistic and literally works, without specifying the format or support of these. In contrast, the Marrakesh Treaty is confined to literary works, in the form of text, notation and/or illustrations, including literary works in the audio form. Clearly, the scope of the article 148 VIII LFDA is wider since it involves non-literally works that may be adapted to be accessible and received by people with disabilities.
Furthermore, article 148 VIII LFDA does not specify the type of disability that the beneficiary persons must have in order to benefit from the limitation. In this respect, the Marrakesh Treaty delimits the limitation to a person who is blind, has a visual disability which cannot be improved, or is otherwise unable to read.
The foregoing potential ambiguity has led to the issuance of a Jurisprudence by our National Supreme Court of Justice, which has attempted to elucidate the meaning of the limitation. It can be obtained from the cited Jurisprudence that the works covered by the limitation must have been adapted or modified to fit the special and specific requirements of persons that, because of their disability, are unable to access the work in standard format. However, regarding the beneficiary persons of said limitation, no further clarification is provided, as it generically mentions people with any type or degree of disability, thus leaving big room for interpretation of this provision.
As commented, there are differences in scope between article 148 VIII LFDA and the Marrakesh Treaty. On the one hand, article 148 VIII seems to be limited as it only refers to the right of publication; on the other hand, said article is broader than the Marrakesh Treaty as it may cover non-literary works that have been adapted for persons with disability. In addition, it is possible that controversies arise from the interpretation and application of the limitation, in absence of any context or definitions within the LFDA. In such event, it is suggested that the international treaties –the Marrakesh Treaty in this case, be used as a guidance, further taking into account, of course, the fundamentally humanitarian origin of the limitation, consistent with the human rights principles set forth in the Universal Declaration of Human Rights and the Convention on the Rights of Persons with Disabilities.