Canada Introduces Legislation Preparing for Accession to the Marrakesh Treaty (Take Two)

In June 2015, proposed amendments to Canada’s Copyright Act were introduced in the House of Commons. These amendments, contained in Bill C-65, the Support for Canadians with Print Disabilities Act, were designed to amend the Copyright Act in order to prepare for implementation of and accession to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty”), but was not acted on before the elections.

On March 24, 2016, Bill C-11, An Act to Amend the Copyright Act (access to copyrighted works or other subject-matter for persons with perceptual disabilities) was introduced.  This bill would likewise prepare for implementation and accession.  The Canadian government previously noted that accession to the Marrakesh Treaty would benefit the approximately 1 million blind or visually impaired Canadians.

Under Canada’s Copyright Act, Article 32 provides a limitation to allow for the creation and distribution of accessible format works for those with disabilities. The current provision broadly permits the creation of an accessible work for persons with a perceptual disability. It does not, however, permit the creation of a large print book. The current exception applies only where an accessible format is not commercially available. A non-profit organization may export an accessible format copy, but only where the author of the work is a Canadian citizen or permanent resident or a citizen or permanent resident of the country to which the copy is being sent. Copies may not be exported where the organization knows or has reasonable grounds to know that an accessible format is available in that country within a reasonable time and for a reasonable price. Royalties are owed by the organization making or sending the accessible format copy. The current copyright law also has an exception to the prohibition against circumvention of technological protection measures, but only where it does not “unduly impair” the technological protection measure.

Bill C-61 makes several changes to Article 32. One of the most significant changes is that it removes the prohibition on the creation of large print format as an accessible copy. Large print is an important type of accessible format because many of those who are visually impaired do not require audio formats or may not read Braille. For example, with age, individuals often require larger print. The Marrakesh Treaty broadly defines an “accessible format copy” and the removal of the prohibition against large print in Article 32, complies with the Treaty and will greatly benefit an aging population.

Another key change would allow the sending of accessible formats to other countries, regardless of the nationality of the authors of the works. Bill C-11 allows for the export of accessible format works to both Marrakesh Treaty countries as well as non-Marrakesh Treaty countries. It would allow for injunctions, but not damages, where the accessible format was exported to a country where it was commercially available within a reasonable time, for a reasonable price and located with reasonable effort. Where a work is exported to a Marrakesh Treaty country, the owner of the copyright bears the burden of demonstrating commercial availability. Where a work is exported to a non-Marrakesh Treaty country, the non-profit organization must also show that it had reasonable grounds to believe that it was not commercially available.

In most other areas (with the exception of language on circumvention of technological measures), changes were not made to the existing exception that allows the creation and distribution of accessible format works.

Introduction of Bill C-11 in Canada is a first step in acceding to the Marrakesh Treaty. The Marrakesh Treaty currently has 16 ratifications and will need 4 more for entry into force. In the United States, the Administration sent the Treaty for ratification along with implementing legislation in February of this year.