Today is an exciting day for copyright law. The president has signed the Marrakesh Treaty Implementation Act, and the United States will soon formally deposit instruments to join this treaty.
Five years ago, on June 27, 2013, the international copyright community adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. Three years later, the Marrakesh Treaty entered into force on September 30, 2016.
The member states of the World Intellectual Property Organization (WIPO) had acted, in relatively quick fashion for an international organization, to develop a new treaty aimed at addressing the dearth of accessible books for those who are blind and visually impaired. In fact, according to WIPO, for the 285 million people worldwide who are blind and visually impaired, 90 percent of whom live in developing countries, only 1 to 7 percent of books are published in a format they can read. This global “book famine” as it has become to be known, was exacerbated by the absence of any international standard that would allow countries to share their accessible books with one another. Thus, while many countries, such as the United States, had domestic laws that allowed for the creation and domestic distribution of those materials, few countries had explicit provisions to support and encourage cross border transfer. Countries like the United States, which had well-developed procedures to create and disseminate accessible books, therefore had limited ways to share those books with those countries that needed them the most.
The Copyright Office has been working on this treaty for a long time.
Creating an international framework to address the book famine has been a long-term interest of the U.S. Copyright Office. The Copyright Office has been involved in the work surrounding the issues of copyright exceptions and limitations for access to copies for the blind and visually impaired long before the 2013 WIPO diplomatic conference.
In March 2009, the Copyright Office and the U.S. Patent and Trademark Office (USPTO) conducted a formal public process to help formulate the government’s views at WIPO, including by seeking formal written comments and holding a public hearing in May 2009. In March 2010, the Copyright Office organized an international training program for developing countries focused specifically on issues pertaining to blind and visually impaired persons. That week-long program, which was part of a biennial program jointly produced by the Copyright Office and WIPO, brought together delegates from twenty-two countries to hear from sixty-one U.S. government and outside expert speakers. Delegates explored the intersection of copyright law, technology, the marketplace, and international cooperation; the variety of factors affecting the ability to provide accessible works to the blind and visually impaired; and other topics. Our June 2018 program also included three sessions on issues related to the Marrakesh Treaty.
I spent a lot of time traveling to Geneva during the negotiations leading up to the diplomatic conference in Marrakesh. In fact, it seemed like I was on a plane almost every six weeks or so, going to Geneva or other cities where informal consultations were scheduled to hammer out drafting issues—both large and small—from the scope and breadth of the treaty to the meaning of individual terms. It is hard to adequately describe the complexity of negotiating proposed treaty language with almost 190 member states—all who have different legal regimes they must advocate for, and some who may speak other languages and therefore have slightly different understanding of the meaning of certain terms. I remember the evening of one informal consultation vividly as there was no air conditioning in the small conference room at WIPO (at least it felt that way) and member state representatives from across the world were packed into the room like sardines. The negotiations that day went into the late evening. This was particularly grueling because it was Ramadan, so a number of negotiators had been fasting all day only to have the meetings run way past sundown. Despite this, the mood was energetic, and the officials were committed to hammering out critical elements of the treaty so as to move forward with a formal diplomatic conference.
Along with colleagues in my office as well as throughout the U.S. government, I recall many external meetings with numerous stakeholder groups about this treaty. We all worked closely with our interagency colleagues (USPTO, State Department, U.S. Trade Representative, Institute of Museum and Library Services, Department of Justice) to determine the United States’ official views and how to best work with officials from other countries. Treaty negotiations are definitely a team sport at all levels.
From the 2013 Diplomatic Conference in Marrakesh . . .
At the end of the 2013 diplomatic conference in Marrakesh, Morocco, there was widespread exuberance in the hallways when, near midnight and after almost two weeks of rollercoaster negotiations, the treaty text was finalized—spurred on a bit no doubt by the rumored prospect that legendary singer Stevie Wonder would join delegations at a celebration concert whenever work was finally concluded. Later, I was amazed by the lively energy among all of the delegates at the incredible concert given by Wonder to celebrate the conclusion of this treaty. Dancing with delegates from around the world to Wonder’s iconic “I Wish” was a wonderful culmination of this historic event.
After the beautiful music ended and the delegates left the enchanting city, everyone in the U.S. delegation—from government officials to all the stakeholders—knew that more work had to be done. The United States Congress had to address changes needed to the law, and the Senate had to provide its advice and consent to join the treaty.
. . . to Implementation in 2018
The United States signed the Marrakesh Treaty as a contracting party on October 2, 2013, but needed to take additional steps to amend its national legislation before becoming a treaty member. This is where the Marrakesh Treaty Implementation Act (MTIA) comes in. Over the past five years, a lot of questions had to be addressed. Congress needed time to consult with various stakeholders, including those representing the blind communities, the publishing sector, and the library communities, among others, on the proposed legislative language. And those groups needed time to work with each other. The Copyright Office and other U.S. government agencies also provided input to Congress during this process.
Earlier this year, the Senate got the ball rolling with proposed legislation. At the end of September 2018, both houses of Congress approved amendments to our Copyright Act to implement Marrakesh Treaty obligations.
The MTIA amends section 121 of the Copyright Act, which has already established limitations and exceptions allowing certain authorized entities, like the Library of Congress’s National Library Service for the Blind and Physically Handicapped, to provide published works in accessible formats to those who have print disabilities. The MTIA reinforces section 121’s mission and changes some of its key terms and definitions to comply with the text of the Marrakesh Treaty. For example, the term “blind or other persons with disabilities” is now “eligible persons,” which is then defined as someone who is blind, has a perceptual or reading disability, or has a physical disability affecting their ability to read.
The MTIA also adds a new section—121A—to the Copyright Act allowing authorized entities to both export and import works in accessible formats between the United States and other countries who have signed the Marrakesh Treaty. Finally, section 121A provides guidance to authorized entities engaged in exporting or importing on establishing and following certain practices and procedures. For a more detailed summary of what the MTIA does, please visit the Office’s FAQ.
I’m thrilled that all the hard work done over the years by so many people with so many diverse interests has resulted in the United States taking these critical steps to join this treaty (the last step will be to deposit documentation with WIPO). I hope our joining the Marrakesh Treaty will make the promise of bringing millions of new accessible works to persons who are blind or print disabled from around the world a reality.
The more we work together, to set standards for each other, the closer we get to peace forever!
Article 11 of the Marrakesh Treaty states in part:
“(b) in accordance with Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, (TRIPS) a Contracting Party shall confine limitations or exceptions to exclusive rights 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 rightholder;”
Will the LOC be willing to make a definitive statement that the 10-15% of a Contracting Party’s overall population who would qualify as potential Marrakesh Treaty Article 3 beneficiaries constitutes a certain special case?
From the above: In fact, according to WIPO, for the 285 million people worldwide who are blind and visually impaired …
From the World Blind Union (WBU) Oxford Guide to the Marrakesh Treaty:
“The overarching objective of the MT is to expand the availability of copyrighted works to the nearly 300 million individuals with print disabilities around the world. Many of these individuals—who include not only those who are blind or visually impaired but also persons with physical reading or perceptual disabilities—” (page 16)
“Many of the estimated 300 million print-disabled persons around the world, especially those living in developing countries … “(page 22)
If the WHO number for blind and visually impaired worldwide is 285 million (as of 2010) then how can there be only 300 million total print disabled persons worldwide when all the potential Treaty Article 3 beneficiaries are included?
The WHO estimates that there are 285 million blind and visually impaired persons in the world. The total number of print disabled persons as eligible beneficiaries per Article 3 of the Marrakesh Treaty — when the approximately half billion or more persons worldwide with dyslexia* are included as well as other qualifying physical disabilities — probably is more in the one billion range.
* From the Duke Study for for Dyslexia International: Dyslexia occurs in at least one in 10 people, putting more than 700 million children and adults worldwide at risk of life-long illiteracy and social exclusion.
From the above: “In fact, according to WIPO, for the 285 million people worldwide who are blind and visually impaired …”
US House testimony by Mr. Jim Fruchterman, CEO of Bookshare 01AUG2013:
“While tens of thousands of our members are blind or visually impaired, the majority of our members are dyslexic. We also serve people who are unable to interact effectively with printed books because of a
physical disability, such as cerebral palsy, a spinal cord injury or traumatic brain injury.”
So the oft cited 285 million figure is really just a fraction of the total Marrakesh Treaty Article 3 beneficiary population.