The Marrakesh Spirit – A Ghost in Three Steps?

The WIPO “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled” is the first multilateral, legally binding instrument primarily devoted to copyright limitations and exceptions. The three-step test informed the complex framework within which the Marrakesh Treaty was negotiated, as this test is generally seen as the international legal standard for copyright limitations and exceptions. Notably, there were concerns and suspicions from the opposite ends of the negotiating table that an international, legally binding instrument for the benefit of the print disabled could be used either to expand or to reduce the reach of the still largely controversial test, with ripple effects percolating throughout the entire intellectual property system. This article makes the point that the three-step test practically haunted the treaty negotiations and put considerable strain on the arduous work to be accomplished on the way to Marrakesh. Following an analysis of the stance and the importance of the test within this new international instrument, the core insight is that, despite legitimate concerns to the contrary, the three-step test was capable of enough flexibility for the “Marrakesh miracle” to take place.