The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled was adopted on 27^th June 2013. According to article 18 of the treaty, the treaty enters into force three months after twenty eligible parties have deposited their instruments of ratification or accession with the Director General of the World Intellectual Property Organisation (WIPO). Through a press release issued by WIPO on 30^th June 2016, the public was informed that Canada was the 20^th state to ratify the treaty on the same day. Consequently, the treaty will enter into force on 30^th September 2016.

The adoption of the treaty was informed by a public interest need to ensure that the blind, visually impaired and print disabled persons (beneficiary persons) are allowed access to literary and artistic works, published or otherwise made available to the public without being subjected to copyright infringement claims. The treaty somewhat provides a balance between public interest (protecting the rights of the beneficiary persons) and private interest (the rights of the copyright owners to their published works). This is done by allowing authorized entities to provide the beneficiaries with accessible format copies such as Braille without the need for authorization from the authors of the copyright works. However, the accessible format copies must still respect the integrity of the original work. Further, the treaty also provides for cross-border exchange of the accessible format copies to other contracting states and allows for importation of the accessible format copies for the benefit of the beneficiary persons.

So what is Kenya’s position in regards to the treaty? While Kenya signed the treaty indicating her willingness to be bound by the instrument, she is yet to ratify or accede to the treaty. If ratified, the treaty provisions will be a welcome milestone for the beneficiary persons. This however will mean that the current Copyright law will need to be amended to capture the limitations and exceptions that will allow for the making of accessible format copies without infringing the rights of the authors. As the law currently stands, it does not provide sufficient safe guard for the making of accessible format copies for the beneficiaries without risk of exposure to copyright infringement claims.

It remains to be seen whether Kenya will proceed to ratify the treaty. The treaty will indeed benefit the society by ensuring access to information and education materials and hence educating the beneficiary persons while also ensuring that Kenya adheres to its obligations under the Universal Declaration of Human rights by recognizing the rights of persons with disabilities to access to information. The move to ratify the treaty will no doubt be informed by mobilization from the various stakeholders in the Intellectual property law field.

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