Tag Archives: a11y

Senate Foreign Relations Committee Holds Hearing on the Marrakesh Treaty for Persons With Print Disabilities

On March 15, 2018, the Marrakesh Treaty Implementation Act (S. 2559) was introduced in the US Senate by Judiciary Committee Chair Grassley (R-IA), Ranking Member Feinstein (D-CA), Foreign Relations Committee Chair Corker (R-TN), Ranking Member Menendez (D-NJ), and Senators Hatch (R-UT), Harris (D-CA), and Leahy (D-VT), to ratify and implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (ARL’s press release on the introduction of the implementing legislation is available here).  Today, April 18, 2018, the Senate Foreign Relations Committee will hold a hearing on the Marrakesh Treaty.  Witnesses include Manisha Singh (Department of State), Allan Adler (Association of American Publishers), Scott LaBarre (National Federation for the Blind) and Jonathan Band (Library Copyright Alliance).

The Marrakesh Treaty, concluded in June 2013 and signed by the United States in October 2013, provides minimum standards for limitations and exceptions to copyright law to create and distribute accessible formats for people with print disabilities and allows for the cross-border exchange of these formats. The treaty is designed to address the “book famine,” a problem where less than 5% of all published works are created in an accessible format in the United States, a figure that drops considerably in some developing countries. The treaty is in force, with 35 contracting parties, currently: Argentina, Australia, Botswana, Brazil, Burkina Faso, Canada, Chile, Costa Rica, Democratic People’s Republic of Korea, Ecuador, El Salvador, Guatemala, Honduras, India, Israel, Kenya, Kyrgyzstan, Liberia, Malawi, Mali, Mexico, Mongolia, Nigeria, Panama, Paraguay, Peru, Republic of Korea, Republic of Moldova, Russian Federation, Saint Vincent and the Grenadines, Singapore, Sri Lanka, Tunisia, United Arab Emirates, and Uruguay.

The implementing legislation makes some technical changes to Section 121 of the Copyright Act, including expanding the scope of works that may be reproduced and distributed to dramatic works or musical compositions fixed in text or notation. Section 121 would apply for domestic activity regarding the creation and distribution of accessible format works. The bill also creates a new Section 121A to address activities involving cross-border exchange.

Ratification and implementation of the Marrakesh Treaty is critical to improving access to information and culture for those who are blind, visually impaired or otherwise print disabled. The treaty will not only assist those living in countries with extremely limited collections of accessible formats, but will provide significant benefits to those in the United States. The United States will be able to enhance its own collections of accessible format works, through exchange with countries with a common language, such as Australia and Canada, but will also benefit from the ability to import works in a foreign language, such as the nearly 50,000 accessible titles from Argentina.

ARL urges the Senate to quickly ratify the treaty, which will greatly enhance the ability of libraries and other authorized entities to serve those with print disabilities. Ratification and the implementing legislation is supported by a broad group of stakeholders, including organizations representing those who are blind, libraries and authorized entities and publishers.

For additional reading:

Fair Use and Captioning for Those Who are Hearing Impaired

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Under the Digital Millennium Copyright Act (DMCA), proponents must file for an exemption every three years to allow for the circumvention of technological protection measures (TPMs) to do things that are otherwise completely lawful under copyright. For example, groups representing those who are visually impaired must ask for the right to circumvent TPMs in order to enable the text-to-speech function on e-readers, even though they do not have to ask for permission to create accessible format copy works for hard copy materials. Even if the use is clearly a fair use, because of ambiguity in the text of the DMCA, individuals or groups must request exemptions for non-infringing uses.

ARL, as part of the Library Copyright Alliance (LCA), is consistently involved in the triennial rulemaking process. Among other petitions, LCA joined in a request to allow for circumvention to create accessible formats of motion pictures to those with disabilities, included through captions and audio descriptions.

Recently, rightsholders submitted opposition to exemption requests and the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and the Association of American Publishers (AAP) oppose the exemption for captioning.

The MPAA argues against captioning qualifying as a fair use. In doing so, the MPAA relies on the Register of Copyright’s conclusion in the 2012 rulemaking process that, “neither Sony-Betamax nor the Copyright Act’s legislative history suggests a rule that all reproduction, adaptation and distribution for the purpose of accessibility is fair use.” The MPAA also criticizes the citation of Authors Guild v. HathiTrust as authority favoring a fair use determination.

The MPAA claims that HathiTrust is not applicable because HathiTrust was making text accessible for people that have print disabilities rather than hearing disabilities:

In HathiTrust, defendants were, among other things, making “text-to-speech” versions of literary works so that they would be accessible to the print disabled. Altering motion pictures is a significantly different undertaking, the result of which is likely a derivative work that involves a creative interpretation of the underlying work. Thus, the proponent’s reliance on HathiTrust is misplaced.

While it is true that the facts in HathiTrust involved accessible formats for those with print disabilities rather than those with hearing impairments, the decision in HathiTrust is still highly relevant. Ultimately, the purpose in creating an accessible format work for someone who is visually impaired and an accessible format work for someone who is hearing impaired is the same: to allow someone with a disability to have access to information and culture. Without accessible formats, those with hearing impairments—just as those with visual impairments—would lack access. Indeed, the court in HathiTrust cites the Supreme Court case, Sony Corp. v. Universal City Studios for the proposition that creating an accessible format work for the convenience of a person with a visual disability does not require anything more than the purpose of entertaining or informing to render the use fair.

Creation of captions for those with hearing impairments is clearly analogous to the creation of a Braille or audio format for someone with a visual impairment. It’s unfortunate that rightholders would argue against accessibility for the hearing impaired as a fair use. Without available captions, those who are deaf or hearing impaired do not have equal access to information.