Monday, February 15, 2016

Books for the Blind? Tell Your Senators To Ratify the Marrakesh Copyright Treaty!

On February 10, President Obama finally submitted a very important treaty worthy of support to the U.S. Senate for ratification.  The Marrakesh Treaty would require that the U.S. Copyright Act 17 U.S.C. 101 et seq. be modified to permit non-profit organizations who have legal access to a copyrighted work to make that copy accessible to the blind and visually impaired.   If you read the Treaty (embedded below), you can see that this change is limited and has many protections for authors of copyrighted works.
According to the World Blind Union, only 1-7% of works in print are made accessible to the blind.  An international treaty known as the Marrakesh Treaty, agreed to in 2013, was recently proposed to the U.S. Senate for ratification.  Here is the analysis by the World Blind Union of how the Marrakesh Treaty would end the "book famine" facing the blind and how the treaty is designed to respect the rights of authors.

According to the National Federation of the Blind:
Millions of Americans are being denied access to published works.[2] Despite the ability to convert print books into accessible formats like Braille, audio, and digital copies, over 95 percent of published works are unavailable to people with print disabilities.[3] Literacy and equal participation in society are critical elements of a fulfilling and independent life, but until uniformity is built into the international copyright system, blind Americans will be excluded from accessing works. A blind student seeking to learn Spanish will likely struggle to find an accessible format[4]; a work printed in English may have already been converted into an accessible format overseas, but because copies are not exchanged across borders, domestic entities might need to make a duplicate copy or just might deny access altogether by failing to reproduce the work.

Read more from the National Federation of the Blind Marrakesh Fact Sheet here.
Here is President Obama's message to the U.S. Senate seeking ratification:

The White House
Office of the Press Secretary
For Immediate Release

Message to the Senate -- The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled

With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, done at Marrakesh on June 27, 2013 (Marrakesh Treaty).  I also transmit, for the information of the Senate, a report of the Secretary of State with respect to the Marrakesh Treaty that includes a summary of its provisions.
This copyright treaty, concluded under the auspices of the World Intellectual Property Organization (WIPO), advances the national interest of the United States in promoting the protection and enjoyment of creative works.  The Marrakesh Treaty lays a foundation, in a manner consistent with existing international copyright standards, for further opening up a world of knowledge for persons with print disabilities by improving their access to published works.
The United States played a leadership role in the negotiation of the treaty, and its provisions are broadly consistent with the approach and structure of existing U.S. law. Narrow changes in U.S. law will be needed for the United States to implement certain provisions of the treaty.  Proposed legislation is being submitted to both houses of the Congress in conjunction with this transmittal.
I recommend that the Senate give early and favorable consideration to the Marrakesh Treaty, and give its advice and consent to its ratification.

Here is a copy of the Marrakesh Treaty:

Here is Techdirt's take.

Below is the take of the International Federation of Reproduction Rights Organizations (accessed here)

Analysis of WIPO Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired, or otherwise print disabled

The WIPO Diplomatic Conference concluded successfully on 28 June 2013 with the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled (available here).
This Memorandum aims at providing a first legal analysis from a rightholder perspective, and concludes as follows:

  • The Treaty is an exceptional treaty, providing access to specifically defined beneficiaries.
  • The Treaty is an access treaty rather than an exceptions and limitations Treaty.
  • The Treaty leaves it to the individual country to decide whether to make the exception or limitation subject to remuneration.
  • The Treaty reconfirms the role of Authorised Entities as a means to facilitate access to works in accessible formats for persons who are blind, visually impaired, or otherwise print disabled. This means that the WIPO-facilitated TIGAR and the EU-facilitated ETIN initiatives to create a network of authorised entities for the cross-border exchange of accessible format copies of works maintain their relevance.
  • The Treaty includes many references to the “three-step test” and to obligations in other international treaties, providing assurance to rightholders that it will be applied, de facto, to all files that are exchanged internationally.
  • Even though there is no mandatory reference to “commercial availability” in the Treaty, rightholders should be able to argue that the “commercial availability” requirement needs to be observed, based on the second limb of the “three-step test” (“normal exploitation”). The Treaty certainly has the flexibility to allow countries at different speeds or stages of development to take into account the level of commercially available offerings.
  • Although there is a reference to “fair practices, dealings or uses” – in the specific context of exceptions and limitations in favour of blind, visually impaired, or otherwise print disabled persons, subject to international obligations – we do not interpret this as an explicit reference to the concepts of “fair use” or “fair dealing”.
For IFRRO members, the Treaty should not per se bring about changes. Countries in which RROs administer statutory licences in respect of accessible format copies are allowed to maintain such arrangements. We also continue to encourage RROs to respond positively to requests from authors and publishers to facilitate the making and cross-border exchange of accessible format copies, including participating in the TIGAR and ETIN projects. We would like to remind you that the IFRRO website has a specific page dedicated to these issues, which also includes tools to facilitate RRO engagement (here).

In sum, I urge my Senators Schumer and Gillibrand to please support the Marrakesh Treaty and to make ratification a priority.  Please let your Senators know that you support this important treaty.
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

1 comment:

jem said...

From August 2013:

"... The position of the Obama Administration, repeated on numerous occasions by the head of the U.S. delegation, is that the Treaty would require no changes to U.S. law. When the Administration asks the Senate to ratify the Treaty, it will submit a detailed legal analysis, which presumably will explain in detail why no changes to U.S. law are need."

If supporters of the Marrakesh Treaty prior to adoption in Morocco wanted to have a WIPO Treaty that required no legislative changes to US copyright law, then they could have made sure that the treaty as adopted would require no legislative changes to US copyright law. They didn't.