On March 15, 2018, Sen. Chuck Grassley (R-Iowa) introduced S 2559, a bill to amend Title 17 of the U.S. Code to (among other purposes) implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. A truly bipartisan effort, its co-sponsors are Sen. Dianne Feinstein (D-Calif.), Sen. Bob Corker (R-Tenn.), Sen. Robert Menendez (D-N.J.), Sen. Orrin Hatch (R-Utah), Sen. Kamala Harris (D-Calif.), and Sen. Patrick Leahy (D-Vt.). The bill has since been referred to the Senate Committee on the Judiciary, where it resides now. In this year of fierce partisan battles over proposed legislation, this bill should pass easily, as it requires no additional budgetary allocations and is in the best interest of individuals who are blind or otherwise visually impaired.
The Marrakesh Treaty, now known as the Marrakesh VIP Treaty (MVT), was adopted in Marrakesh, Morocco, on June 27, 2013. Its primary purpose is to ensure the availability of accessible published works for people who are visually impaired and to mandate this availability in the copyright laws of each participating country. For this treaty to be ratified, 20 countries were required to sign it. To date, there are 92 countries participating, but only 35 are actively enforcing it or have committed to do so.
The World Intellectual Property Organization (WIPO) administers the treaty, and as stated on its website, “The MVT requires WIPO to establish an ‘information access point’ to allow voluntary sharing of information facilitating the identification of authorized entities. … In addition, Contracting Parties undertake to assist their authorized entities engaged in cross-border transfer arrangements.” The World Blind Union (WBU) defines an authorized entity as "a non-profit or government agency that makes accessible copies of Works, and limits distribution of those copies to people with bona fide disabilities, which it calls ‘Beneficiary Persons.’ (It also covers for-profit entities that provide services to beneficiary persons using public funds and on a not-for-profit basis.)”
Authorized entities are permitted to do the following:
- Create accessible-format copies without authorization from a rightsholder
- Get accessible-format copies from another authorized entity
- Disseminate accessible-format copies to beneficiary persons by any means necessary
According to the WBU, accessible format means access “as feasibly and comfortably as [for] a person without visual impairment or other print disability.” Examples include Braille, large-print, audio, and speech-to-text content created from published “literary and artistic works.”
Authorized entities would include the WBU, the Central Association for the Blind and Visually Impaired, the European Blind Union, the Perkins School for the Blind, and the National Library Service for the Blind and Physically Handicapped (at the Library of Congress and other libraries and associations nationwide).
A First Step Toward Accessibility
In July 1996, thanks to Sen. John Chafee (R-R.I.), the U.S. began the process of amending the Copyright Act to provide copyright exceptions that better serve blind or print-disabled individuals—reflecting an agreement reached by the National Federation of the Blind (NFB) and the Association of American Publishers (AAP). The amendment, which was enacted by then President Bill Clinton on Sept. 16, 1996 as part of Public Law 104-197, added Section 121 to the Copyright Act.
Although the U.S. signed the MVT in October 2013, this was just a first step. Passing S 2559 will join the language of the treaty with that of U.S. copyright law, thereby making the U.S. an active entity in the creation and sharing of accessible works.
In his introduction of S 2559, Sen. Grassley explained:
[The MVT] seeks to help address the global ‘book famine’ and facilitate access to printed works for visually impaired individuals by providing, with appropriate safeguards, that copyright protection should not impede the creation and distribution of accessible format copies, including the exchange of such copies internationally.
The Marrakesh Treaty Implementation Act represents a consensus approach developed by the Senate Judiciary and Foreign Relations Committees with stakeholders within the publishers, libraries and print disabilities communities, in consultation with the U.S. Patent and Trademark Office and the U.S. Copyright Office as well as other interested industry and public interest stakeholders. I particularly want to commend the National Federation of the Blind, the Association of American Publishers and the Library Copyright Alliance for working with us in reaching an agreement on legislative text and proposed legislative history. We would not be here today without their efforts.
Increasing the Reach of Accessible Works
Essentially, S 2559 would, according to the WBU, “broaden the reach of accessible works to include previously published musical works available in only in text or notation” and “refine the definition of an ‘eligible person’ as an individual” who, according to WIPO, is “(a) is blind; (b) has a visual impairment or 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 impairment or disability; or (c) is 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; regardless of any other disabilities.”
The bill also proposes to add a new section to the Copyright Act, 121A, which would protect authorized entities from copyright infringement for importing or exporting accessible-format copies to other authorized entities in countries that are participating in the treaty.
Positive Outcomes All Around
With the U.S on board, the universe of accessible-format copies will grow immensely, notes Allan Adler, general counsel and VP of government affairs at AAP. He says, “The U.S entry with its large market, audience, and capacity to produce accessible formats will significantly impact the availability of accessible formats worldwide. This is not the end answer, but it is a good start. When anyone with a visual or physical problem can go anyplace to purchase books and other materials in accessible formats, this is the true end game.”
Adler is not alone in praising the hoped-for outcome of this bill. In a statement released by ALA president Jim Neal upon the introduction of the bill, he said, “The Marrakesh Treaty Implementation Act would expand information access, reading and learning for persons with print disabilities not just in America, but around the world. In the United States, persons unable to read print text currently have less than five percent of the published content available to them than sighted people; in many developing countries, it is less than one percent.” Neal reinforces the role libraries will play, saying, “Libraries are central to the architecture of the Marrakesh Treaty. Libraries are among the authorized entities that will create and distribute the accessible format copies to people with print disabilities.”
The U.S. will also benefit. Neal notes, “One way the United States stands to benefit from the Marrakesh Treaty is that it would allow U.S. libraries to ‘import’ accessible content for library users with print disabilities who speak languages other than English.” Consider too the benefit for researchers and scholars, who will now be able to access materials in accessible formats that were unavailable before. Neal says:
It is primarily specialized libraries that purchase content for people with print disabilities. It should be noted here that U.S. libraries—especially academic and urban public libraries—have a wealth of materials that have been inaccessible to researchers and students around the world who have print disabilities. Being able to provide access to these extensive collections would be a boon for English-speaking people with print disabilities in other countries that are signed onto the Treaty. Resources on a wide range of topics—from polymer science to postmodern linguistics—will ultimately bring a wider range of perspectives to enrich international scholarship.
Passing S 2559 should be a no-brainer, especially given its bipartisan sponsorship and nonexistent budgetary impact. Let’s hope that the members of Congress agree and move quickly to pass this bill to finally implement the Marrakesh Treaty in the U.S.