INTELL.

ECTUAL PROPERTY
OFFICE OF THE PHILIPPINES

IPOPHL MEMORANDUM CIRCULAR No.2 0 1 9 025

Series of 2019

SUBJECT: PHILIPPINE REGULATIONS IMPLEMENTING THE MARRAKESH TREATY

TO FACILITATE ACCESS TO PUBLISHED WORKS FOR PERSONS WHO
ARE BLIND, VISUALLY IMPAIRED OR OTHERWISE PRINT DISABLED

Whereas, Section 1, Article XIV of the Philippine Constitution provides that:

The State shall protect and promote the right of all citizens to quality
education at all levels and shall take appropriate steps to make such
education accessible to all.

Whereas, the Intellectual Property Office of the Philippines (IPOPHL) is mandated to

administer and implement the state policies declared in Republic Act No. 8293, the Intellectual
Property Code of the Philippines (IP Code), as amended by Republic Act No. 10372;

Whereas, Sec. 2 of the IP Code, as amended, states that:

The use of intellectual property bears a social function. To this end, the
State shall promote the diffusion of knowledge and information for the
promotion of national development and progress and the common good.

Whereas, Sec. 184.1(I) of the IP Code, as amended, provides, as one of the limitations
on copyright:

The reproduction or distribution of published articles or materials in a

specialized format exclusively for the use of the blind, visually- and reading-
impaired persons: Provided, That such copies and distribution shall be
made on a nonprofit basis and shall indicate the copyright owner and the
date of the original publication.

Whereas, as State Party to the UN Convention on the Rights of Persons with

Disabilities, government entities commit to implement all of the provisions thereof, particularly
Articles 24.3, 30.1 and 30.3, which state, to wit:

24.3. States Parties shall enable persons with disabilities to learn life and
social development skills to facilitate their full and equal participation in
education and as members of the community. To this end, States Parties
shall take appropriate measures, including:

(a) Facilitating the learning of Braille, alternative script, augmentative and

alternative modes, means and formats of communication and
orientation and mobility skills, and facilitating peer support and
mentoring;

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® www.ipophil.gov.ph o Intellectual Property Center

[email protected] #28 Upper McKinley Road
Mckinley Hill Town Center
9 +632-2386300
Fort Bonifacio, Taguig City
• +632-5539480 1634 Philippines
 (b) Facilitating the learning of sign language and the promotion of the
linguistic identity of the deaf community;

(c) Ensuring that the education of persons, and in particular children, who
are blind, deaf or deafblind, is delivered in the most appropriate
languages and modes and means of communication for the individual,
and in environments which maximize academic and social
development.

30.1 States Parties recognize the right of persons with disabilities to take
part on an equal basis with others in cultural life, and shall take all
appropriate measures to ensure that persons with disabilities: (a) enjoy
access to cultural materials in accessible formats;

30.3. States Parties shall take all appropriate steps, in accordance with
international law, to ensure that laws protecting intellectual property rights
do not constitute an unreasonable or discriminatory barrier to access by
persons with disabilities to cultural materials.

Whereas, Republic Act No. 7277, as amended, or the Magna Carta for Persons with
Disabilities, declares that:

The State shall take into consideration the special requirements of persons
with disability in the formulation of educational policies and programs. It
shall encourage learning institutions to take into account the special needs
of persons with disability with respect to the use of school facilities, class
schedules, physical education requirements, and other pertinent
consideration.

Whereas, on November 12, 2018, the President of the Republic of the Philippines, had
signed the Instrument of Accession to the "Marrakesh Treaty to Facilitate Access to Published
Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled" (MVT);

Whereas, the Instrument of Accession was deposited with the Director General of the
World Intellectual Property Organization (WIPO), in Geneva, Switzerland, on December 18,
2018, and consequently, per Article 19 (b) of the MVT, the said treaty had been in effect in the
Philippines on March 18,2019;

Whereas, there is a need to establish regulations that would properly and effectively
implement the provisions of Sec. 184.1 of the IP Code and of the MVT, taking into consideration
the balancing of rights inherent in the intellectual property system;

NOW, THEREFORE, pursuant to the authority of the Director General under Section
7.1(a) of the IP Code that grants the power to manage and direct all functions and activities of
the IPOPHL including the promulgation of rules and guidelines to implement the objectives,
policies, plans, programs, and projects of the Office, the following Rules are hereby adopted
and promulgated, as follows:

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 RULE I
GENERAL PROVISIONS

Section 1. Short Title. - These regulations shall be known as the "Philippine Marrakesh
Regulations" .

Section 2. Coverage. - These rules shall apply to facilitating access to certain published
works without the authorization of the right holder, exclusively for the benefit of persons who are
blind, visually impaired or otherwise print-disabled and under conditions provided below.

Section 3. Definitions. -

a. Accessible format copy - a copy of a work in an alternative or specialized manner or

form, including Braille, audio books and other existing formats or ones that may be
developed in the future, which gives a beneficiary person access to the work, including
to permit the person to have access as feasibly and comfortably as a person without
visual impairment or other print disability.

b. Authorized entity - an entity that refers to

(i) Organizations that are explicitly recognized or approved by the government to make
and share accessible format copies. This includes for profit entities authorized or
recognized by the government to provide education, instructional training, adaptive
reading or information access to print-disabled individuals. This may also include
entities receiving financial support from the government to provide the said activities
on a non-profit basis; or

(ii)A government institution or non-profit organization that provides the same services to
beneficiary persons as one of its primary activities or institutional obligations.

c. Beneficiary person - a person who is, regardless of any other disabilities:

(i) blind;

(ii) visually impaired or has a perceptual or reading disability which cannot be improved
to give visual function substantially equivalent to that of a person who has no such
impairment or disability and so is unable to read printed works to substantially the
same degree as a person without an impairment or disability; or

(iii) otherwise unable, through physical disability, to hold or manipulate a book or to focus
or move the eyes to the extent that would be normally acceptable for reading.

d. Bureau or BCRR - Bureau of Copyright and Related Rights

e. Director - Director of the Bureau of Copyright and Other Related Rights.

f. Right holder - owner of copyright over works.

g. Works - literary and artistic works within the meaning of Sec. 172.1 (original intellectual
creations) and 173.1 (derivative works) of the IP Code, in the form of text, notation

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 and/or related illustrations, whether published or otherwise made publicly available in
any media, including in audio form.

RULE II
AUTHORIZATION OF ENTITIES

Section 1. Authorizing Government Agency. - The IPOPHL, through the BCRR, is

mandated to authorize and recognize entities defined in Sec. 3 (b) of Rule I above. A non-
refundable application fee, plus 1% legal research fee, shall be paid by the applicant entity to
cover expenses of the proceedings and administrative costs.

Section 2. Authorization of For-Profit Entities. - For-profit entities shall request the

BCRR for recognition as authorized entity by submitting the following documents:

a. Formal letter request for authorization;

b. Latest reportorial requirements or documents submitted to, duly stamped "received," or

issued by the Securities and Exchange Commission (SEC), including:

• Certificate of Incorporation;
• Articles of Incorporation and By-Laws;
• General Information Sheet (GIS); and
• Audited Financial Statements.

c. Organizational structure;

d. List of activities for the benefit of visually impaired persons within the last year;

e. List of reproduced works in the accessible format copy, if any;

f. Statement under oath that -

• activities to be undertaken in connection with the request shall be for non-profit

purposes; and
• the documents submitted are true and faithful reproductions of the original, and
that the material information or data contained in the request are likewise true
and faithful representations of the facts.

Section 3. Authorization of Non-Profit Organizations. - Non-profit organizations shall

request the BCCR for recognition as authorized entity by submitting the following documents:

a. Formal letter request for authorization;

b. Latest reportorial requirements or documents submitted to, duly stamped "received" or

issued by the SEC, including:

• Certificate of Incorporation;
• Articles of Incorporation and By-Laws;
• General Information Sheet (GIS); and
 • Audited Financial Statements.

c. Organizational structure;

d. List of activities for the benefit of visually impaired persons within the last year;

e. List of reproduced works in the accessible format copy, if any; and

f. Statement under oath that the documents submitted are true and faithful reproductions
of the original, and that the material information or data contained in the request are
likewise true and faithful representations of the facts.

Section 4. Authorization of Government Agencies. - Government agencies that provide

education, instructional training, adaptive reading or information access to print-disabled
individuals pursuant to their mandates shall submit a letter addressed to the BCRR, informing
the latter of its intention to avail of the rights granted under the Marrakesh Treaty and of Sec.
184.1(1) of the IP Code.

Section 5. Authorized Beneficiary Person. - Notwithstanding the authorization of

entities, a beneficiary person/s, or someone acting on his or her or their behalf, including a
primary caretaker, trusted caregiver or personal assistant, is/are authorized to make an
accessible format copy of a work for personal use of the beneficiary person or otherwise may
assist the beneficiary person to make and use accessible format copies where the beneficiary
person has lawful access to that work or a copy of that work.

Section 6. Third Party Observation. - Within three (3) days from filing, the letter request
for authorization shall be published in the IPOPHL website. Any interested party may submit
written observations thereon to the BCRR within fifteen (15) days from said publication. Within
three (3) days from submission of any written observation, the BCRR shall communicate the
observations to the applicant entity who may comment on them within ten (10) days from receipt
of said communication. The BCRR shall acknowledge and consider the observations and
comments in making its decision.

Section 7. Decision of the Director. - The Director shall examine the merits of the
request for authorization within thirty (30) days from receipt of the last observation or comment
of the parties. Thereafter, the Director shall render a decision granting or denying authorization.
The corresponding certificate shall be issued within one (1) week from date of the decision.

Section 8. Denial of Authorization or of Renewal. - Authorization or renewal thereof may

be denied on the following grounds:

a. Non-compliance with the provisions of Sections 2 or 3 above;

b. The information supporting the application and/or the third-party observation reveal that
the entity cannot effectively perform the duties and responsibilities of an authorized
entity as enumerated in Sec. 11 below; and

c. Misrepresentation and other analogous circumstances.

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Section 9. Effectivity of Authorization. - The authorization shall be effective for a period
of three (3) years starting from the date of issuance of the decision granting the authorization.

Section 10. Duties and Responsibilities of Authorized Entities. - Authorized entities

shall have the following duties and responsibilities:

a. Establish that the persons they serve are beneficiary persons;

b. Limit to beneficiary persons and/or authorized entities its distribution and making
available of works in accessible format copies;

c. Prevent the reproduction, distribution and making available of unauthorized copies;

d. Maintain due care in, and records of, its handling of copies of works, while respecting the
privacy of beneficiary persons in accordance with Republic Act No. 10173, the Data
Privacy Act of 2012; and

e. Provide the following information in an accessible way, on request, to beneficiary

persons, other authorized entities or right holders:

(i) the list of works or other subject matter for which it has accessible format copies and
the available formats; and

(ii) the name and contact details of the authorized entities with which it has engaged in
the exchange of accessible format copies pursuant to Rule IV below.

f. Assist the BCRR in information dissemination on the MVT, Section 184.1 of the IP Code,
and these rules to beneficiary persons, potential authorized entities and the general
public.

Section 11. Reportorial Requirement. - Authorized entities shall submit the information
required under Section 11(e) to BCRR on or before the anniversary of its authorization or
manifestation of authorized status.

Section 12. Renewal of Authorization. - An authorized entity may apply for renewal of its
authorization at least thirty (30) days before the expiration of the term, and submitting any
updates on the requirements in Sections 2 and 3 above.

Section 13. Publication upon Approval or Renewal of Authorization. - BCRR shall

publish, in the IPOPHL website, the list of authorized entities, their contact details and their
corresponding certificates, as may be allowed under Republic Act No. 10173, or the Data
Privacy Act of 2012.

Section 14. Suspension and Cancellation of Authorization. - The BCRR Director shall
suspend, motu proprio or at the instance of the beneficiary person/s, or an interested party, after
giving the concerned entity due notice and opportunity to be heard, the authorization of an
entity, for any of the following grounds:

a. Perjury, false representation, falsification, forgery and misrepresentation of documents,

material information or data contained in the documents submitted under Sections 2 or 3
as may be determined by the BCRR;

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 b. Failure to engage in any of the activities under Section 1, Rule III within one (1) year
after authorization. In this connection, an authorized entity may be allowed to surrender
its certificate or authorization should, in its assessment, it will not be able to perform any
of the said activities; and

c. Failure to submit the reportorial requirements as contained in Section 12.

Except in the case of (a) which shall be a ground for permanent cancellation, compliance or
non-compliance with the requirements of (b) within six (6) months and (c) within three (3)
months, from the date of suspension shall trigger the issuance of a compliance order or
permanent cancellation order, as the case may be.

Section 15. New Application. - The entity whose authorization has been cancelled may file
a new application for authorization within six (6) months, subject to the same requirements and
procedure as the previous application.

Section 16. Appeal to the Director General. - The decision of the Director denying
authorization or renewal thereof, or suspending the authorization, shall be appealable to the
Director General, subject to the IPOPHL Uniform Rules on Appeal, as amended.

RULE III
AUTHORIZED ACTIVITIES

Section 1. Authorized Activities. - Authorized entities are permitted, without the consent
of the right holder, to do the following authorized activities:

a. Make an accessible format copy of a work;

b. Obtain from another authorized entity an accessible format copy, and supply those
copies to beneficiary persons by any means, including non-commercial lending or by
electronic communication by wire or wireless means; and

c. Undertake any intermediate steps necessary and indispensable to the above activities.

Section 2. Relation to Contract. - The authorized activities above cannot be overridden

by contract.

Section 3. Conditions for the Making of Accessible Format Copies of a Work. -

Authorized entities shall be permitted to make accessible format copies of a work, subject to the
following conditions:

a. The authorized entity must have lawful access to the work or a copy of the work. This
means that the authorize must have a legitimate and original copy of the work to be
converted;

b. The work is converted to an accessible format copy, which may include any means
needed to navigate information in the accessible format, but does not introduce changes
other than those needed to make the work accessible to the beneficiary person;

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 c. The accessible format copy shall indicate the copyright owner and date of the original
publication;

d. Such accessible format copies are supplied exclusively to be used by beneficiary

persons; and

e. The conversion is undertaken on a non-profit basis and does not unreasonably prejudice
the legitimate interests of the right holder.

Section 4. Reasonable Fees. - Nothing in this rule precludes an authorized entity from
charging a reasonable fee for making or sharing accessible format copies in order to cover its
expenses.

RULE IV
CROSS-BORDER EXCHANGE OF ACCESSIBLE FORMAT COPIES

Section 1. Exchange through an Authorized Entity. - Authorized entities are permitted,

without the authorization of the right holder, to import, distribute or make available for the
exclusive use of beneficiary persons accessible format copies from an authorized entity in
another Contracting Party to the MVT, or to export to an authorized entity in such Party.

Section 2. Exchange through a Beneficiary Person. - Authorized entities are permitted,

without the authorization of the right holder, to import, distribute or make available for the
exclusive use of beneficiary persons accessible format copies from a beneficiary person in
another Contracting Party to the MVT, or to export to a beneficiary person in such Party.

Section 3. Importation for Personal Use. - A beneficiary person, someone acting on his
or her behalf, or an authorized entity, is permitted, without the authorization of the right holder,
to import an accessible format copy for the personal use of such person.

Section 4. Voluntary Sharing of Information. - Authorized entities are encouraged to

voluntarily share information that would assist them in identifying one another and in
ascertaining policies and practices, to interested parties and members of the public, as may be
allowed under Republic Act No. 10173 or the Data Privacy Act of 2012.

RULEV
FINAL PROVISIONS

Section 1. Construction in Favor of Beneficiaries. - These Implementing Rules and

Regulations shall be liberally construed to promote access to, and use of works, by the herein
beneficiary persons. All doubts in the implementation and interpretation of these Rules shall be
resolved in favor of the beneficiary persons, consistent with the spirit and letter of the Marrakesh
Treaty and Section 2 in relation to Sec. 184.1 of the Intellectual Property Code.

Section 2. Without Prejudice to Other Limitations and Exceptions. - Nothing in these

rules shall affect any provisions which promote access to and use of works by beneficiary
persons, which may be contained in national law and international treaties in force in the
Philippines.

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Section 3. Information Dissemination. - The BCRR, with the assistance of concerned
government agencies and authorized entities, shall make the MVT, Section 184.1 of the IP
Code, and these rules widely known, through active and appropriate means and formats, to
beneficiary persons, potential authorized entities and the general public.

Section 4. Separability Clause. -If any section or provision of these Rules shall be held to
be invalid, the remaining provisions shall remain in full force and effect as completely as if the
part held invalid has not been included therein.

Section 5. Effectivity. - These Rules shall take effect after fifteen (15) days from
publication in a newspaper of general circulation.

Section 6. Furnishing of Certified Copies. - Certified copies of this Memorandum

Circular shall be filed with the University of the Philippines Law Center, the Department of Trade
and Industry, the Senate of the Philippines, the House of Representatives, the Supreme Court
of the Philippines and the National Library.

Done this 10t\. day of December 2019, at Taguig City, Philippines.

JOSEPHI R. SANTI~£..
Di ector General

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