Tag Archives: marrakesh treaty

New Advocacy and Policy Update: August 14, 2015

A new ARL Advocacy and Policy Update, covering mid-June to mid-August is now available here.  Prior updates can be accessed here.

The summary and contents from the current Advocacy and Policy Update are reproduced below:

Summary

The US House of Representatives began the summer recess on July 30th, and the US Senate adjourned on August 6th with both reconvening on September 8th. September and October promise to be very busy months as both chambers must act on the FY 2017 appropriations bills, highway trust fund, debt ceiling, and many other issues. It is also hoped that there will be a deal to increase the spending limits under sequestration, which higher education institutions and others have long advocated for.

Much of the activity related to copyright has centered around the Copyright Office. Congressional offices continue to explore and discuss ways to modernize the Copyright Office, including various proposals to move the Copyright Office out of the Library of Congress. Additionally, the Copyright Office has issued notices of inquiries that relate to orphan works, mass digitization, visual works, and extended collective licensing.

There have been positive developments with respect to open access, open educational resources, and open data. The Obama Administration released science and technology priorities for FY 2017, which note that “preserving and improving access to scientific collections, research data, other results of federally funded research, open datasets and open education resources should be a priority for agencies.” The FASTR Bill to enhance public access to research was approved unanimously by the US Senate Committee on Homeland Security and Governmental Affairs.

Privacy and surveillance concerns continue as Congress is considering cybersecurity legislation that raises serious issues for privacy and civil liberties. Litigation around net neutrality is in full swing, with the briefs of telecommunications companies opposing the FCC’s net neutrality rules filed in July.

Finally, ARL continues to promote a simple and quick ratification of the Marrakesh Treaty. Currently, 10 countries have ratified the Treaty, and 10 more are needed for it to enter into force.

Contents

Copyright and Intellectual Property

  • Proposal to “Modernize” the Copyright Office
  • Copyright Office Notice of Inquiry on Visual Works
  • Copyright Office Notice of Inquiry on Mass Digitization and Extended Collective Licensing
  • House Judiciary Committee’s Copyright Review

Open Access, Open Educational Resources, and Open Data

  • Obama Administration Releases Science and Technological Priorities for FY 2017
  • Coalition Calls on White House to Open Up Access to Federally Funded Educational Resources
  • FASTR Bill to Enhance Public Access to Research Approved by US Senate Committee
  • National Technical Information Service (NTIS)

Update Appropriations

Draft Bill Would Eliminate NHPRC

Privacy and Surveillance

  • Cybersecurity Legislation
  • Electronic Communications Privacy Act Reform

Telecommunications

  • Net Neutrality Litigation

International Treaties

  • Trans-Pacific Partnership Agreement
  • Marrakesh Treaty

Analysis of August 2015 Leaked TPP Text on Copyright, ISP and General Provisions

The United States is currently negotiating a large, regional free trade agreement with eleven other countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. On August 5, 2015, Knowledge Ecology International published a new leak of the Trans-Pacific Partnership Agreement’s (TPP) negotiating text for the intellectual property chapter. This text, dated May 11, 2015 reflects the state of the negotiations prior to the recent Ministerial meeting in Hawaii (and new agreements may have been made during the recent TPP meeting). This latest leak reveals some substantial changes from last year’s October leak of the text by WikiLeaks (which revealed the state of negotiations as of May 14, 2014).

In general, the more recent text shows some improvement over last year’s text, although serious problems remain.

Copyright

Copyright Term

The copyright term has not yet been agreed to, and it has widely been considered to be a political decision to be determined by the trade ministers. Currently, there is a wide range of proposals available for copyright term, ranging from life plus 50 years, to life plus 70 years, to life plus 100 years when based on the life of an author. For corporate works, there are four proposed terms of 50, 70, 75 or 95 years. These are wide ranging proposals and longer copyright terms exacerbate the orphan works problem and hamper the public domain. The potential for excessively long copyright terms that far exceed international standards is one of the largest remaining flaws in the agreement from the perspective of access to knowledge and information. Countries should resist copyright term extension, particularly given the lack of evidence supporting these extensive copyright terms.

Japan’s proposal, which appeared in the previous leak, similar to the Berne rule of shorter term remains. This rule would essentially allow parties to limit the term of protection provided to authors of another party to the term provided under that party’s legislation. For example, if the final TPP text required a period of copyright protection of life plus fifty years, the United States would not be required to provide its period of life plus seventy years to authors in New Zealand, if New Zealand continued to provide a term of life plus fifty years. The United States does not currently implement the Berne rule of shorter term.

Formalities

In last year’s leaked text, Article QQ.G.X appeared for the first time and was unbracketed, signaling agreement by the TPP negotiating parties. This provision read, “No Party may subject the enjoyment and exercise of the rights of authors, performers and producers of phonograms provided for in this Chapter to any formality.” As noted in last year’s analysis by ARL, the language was potentially problematic for countries wanting to re-introduce formalities for copyright protections granted that go beyond minimum international standards. The Register of Copyrights Maria Pallante, for example, proposed the re-introduction of formalities for the last twenty years of copyright protection in the United States, which would have violated the TPP if a period of life plus seventy years was also agreed to.

Although this provision was unbracketed in the 2014 text, it appears from the current leak that this ban on formalities has been removed. The removal of this language is significant as it would not only permit the reintroduction of formalities for the last twenty years of copyright term in the United States, but also allows for formalities in other areas. For example, formalities can be required in order to be eligible for certain remedies for copyright infringement. It could be used to address the orphan works problem by establishing registries in order to receive damages or an injunction for works that are still protected under copyright in the United States, but go beyond the terms required by international law. Footnote 160 in the current leak appears to allow such arrangements, providing that “For greater certainty, in implementing QQ.G.6, nothing prevents a Party from promoting certainty for the legitimate use and exploitation of works, performances and phonograms during their terms of protection, consistent with QQ.G.16 [limitations and exceptions] and that Party’s international obligations.”

Limitations and Exceptions

The language from the previous leak on limitations and exceptions, including a reference to the Marrakesh Treaty, remains in the text and is particularly welcome, given that it has not been included in previous US free trade agreements. The language provides that

Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system inter alia by means of limitations or exceptions that are consistent with Article QQ.G.16.1, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.[164] [165] 

[164] As recognized by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled (June 27, 2013). The Parties recognize that some Parties facilitate the availability of works in accessible formats for beneficiaries beyond the requirements of the Marrakesh Treaty.

[165] For purposes of greater clarity, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under Article QQ.G.16.3

Footnote 164, which references the Marrakesh Treaty, now includes an additional sentence that recognizes that some parties provide for limitations and exceptions for beneficiaries that go beyond the requirements of the Marrakesh Treaty. Currently, ten parties have ratified the Marrakesh Treaty and an additional ten are required for entry into force. Singapore and Mexico, both negotiating parties to the TPP, have already ratified the Marrakesh Treaty, and Canada has introduced a bill paving the way for implementation of the Treaty. A number of other TPP negotiating parties have signed the treaty, signaling an intention to ratify, including Australia, Chile, Peru, and the United States.

While inclusion of language on limitations and exceptions is a welcome addition to the agreement, this provision should be strengthened by making mandatory the obligation to achieve balance rather than using the term “shall endeavor,” as the Library Copyright Alliance pointed out in an August 2012 letter to the United States Trade Representative.

Technological Protection Measures

Last year’s leak revealed language that permits parties to provide limitations and exceptions to technological protection measures “in order to enable non-infringing uses where there is an actual or likely adverse impact of those measures on non-infringing uses.” The leak also revealed that the three-year rulemaking process to create these limitations and exceptions, as earlier proposed by the United States, was removed. The current leak maintains this language, but drops the reference to the three-step test (though the language on limitations and exceptions remains the same) and also eliminates Chile’s proposal that the process for establishing limitations and exceptions requires consideration of “evidence presented by beneficiaries with respect to the necessity of the creation of such exception and limitation.”

Overall, this language is an improvement over the United States’ initial proposal from 2011 regarding technological protection measures, which only allowed for a closed list of specific limitations and exceptions while others could be added through a three-year rulemaking process, because it would allow for new permanent limitations and exceptions to allow for circumvention of TPMs. Such permanent limitations and exceptions could be granted for cell-phone unlocking. However, the language does assume that parties need to provide for limitations and exceptions, even for non-infringing uses.

Article QQ.G.10(c) maintains the unfortunate language that “a violation of a measure implementing this paragraph is independent of any infringement that might occur under the Party’s law on copyright and related rights.” Establishing that the circumvention of a technological protection measure is independent of any copyright infringement negatively impacts legitimate, non-infringing circumvention. It is unfortunate that this language not only remains in the text, but is unbracketed, meaning that countries have agreed to this flawed provision.

Internet Service Providers

The text on Internet Service Providers appears in an addendum and contains important caveats that the text is “Without Prejudice” and “Parties are still considering this proposal and reserve their position on the entire section.” Thus, even where language is unbracketed, it does not necessarily reflect agreement.

The current leak reveals that the text contains significant flexibilities that did not previously exist. For example, the United States and Canada have proposed language that would continue to allow Canada’s notice-and-notice system, rather than require the United States notice-and-takedown system. It appears to protect Canada’s system as one that “forward[s] notices of alleged infringement” but requires that the system exist in the Party “upon the date of entry into force of this Agreement.” If this language is agreed to, it could therefore be conceivable that other parties to the TPP could implement systems of notice-and-notice, provided that they do so before entry into force of the TPP. Similarly, footnote 299 appears to allow Japan to maintain its safe harbor framework.

In last year’s leak, Peru had proposed a footnote that now appears in the general text of the section on ISPs. This paragraph now reads, “It is understood that the failure of an Internet service provider to qualify for the limitations in paragraph 1 does not itself result in liability. Moreover, this article is without prejudice to the availability of other limitations and exceptions to copyright, or any other defences under a Party’s legal system.” This language provides a helpful clarification and clearly establishes the language as a safe harbor, not as a direct creation of liability where an ISP does not qualify for the limitations set forth under the agreement.

General Provisions

In addition to improvements in the copyright section, there appears to be agreement on positive language regarding general provisions. Many of the positive proposals regarding general provisions in last year’s leak were bracketed and not yet agreed to.

The objectives now read:

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

Additionally, principles that had previously been agreed to by six parties now appear unbracketed and specifically reference the public interest and address the need to prevent abuse of intellectual property rights by right holders:

1.  Parties may, in formulating or amending their laws and regulations, adopt measures necessary to protect health and nutrition, and to promote the public interest in sectors of vital importance to their socio­economics and technological development, provided that such measures are consistent with the provisions of this Chapter.

2.  Appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

There is also new language, which appears to be mostly agreed to, that promotes the dissemination of knowledge and information. In addition, Chile and Canada have proposed language, which the United States and Japan oppose, emphasizing the importance of the public domain. This article, “Understandings in respect of this Chapter” reads:

Having regard to the underlying public policy objectives of national systems, the Parties recognise the need to:

  • promote innovation and creativity;
  • facilitate the diffusion of information, knowledge, technology, culture and the arts; and
  • foster competition and open and efficient markets;

through their intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of relevant stakeholders, including rights holders, service providers, users and the public [CL/CA propose; US/JP oppose; and acknowledging the importance of preserving the public domain.]

It is disappointing that the United States would oppose language acknowledging the importance of preserving the public domain, which provides a storehouse of raw materials from which individuals can draw from to learn and create new ideas or works. The public domain is essential in fostering new creativity and advancing knowledge.

Proportionality in Enforcement

While this analysis does not cover the section on enforcement in detail, there is one significant positive improvement from previous texts. Under the general enforcement provisions, there is new text that appears to be agreed to language that is replicated from the text of the Anti-Counterfeiting Trade Agreement (ACTA) and would require parties to “take into account the need for proportionality between the seriousness of the intellectual property infringement, and the applicable remedies and penalties, as well as the interests of third parties.” Inclusion of this language is a welcome improvement to the text of the enforcement section.

Conclusion

Overall, the text of the copyright section as well as some other key provisions reflect improvements over the initial intellectual property chapter proposed by the United States in February 2011. The section on technological protection measures no longer limits the limitations and exceptions to a closed list and does not impose a three-year rulemaking process. It would allow for permanent limitations and exceptions to anti-circumvention provisions. Additionally, the text shows greater flexibility with respect to ISPs and appears much less complicated than it initially did. Furthermore, the current text reflects agreement on positive language with respect to limitations and exceptions and a reference to the Marrakesh Treaty has been included. The removal of the formalities language that appeared in last year’s text is also a welcome improvement. General provisions and enforcement language has also seen improvements.

While there have been improvements in the text, there are still concerning elements, the biggest of which is the potential for locking-in current lengthy and excessive copyright terms as well as the possibility of even requiring further extension to life plus 100 years. Additionally, the requirement that circumvention of a technological protection measure be independent from copyright infringement is illogical and prevents circumvention for legitimate, non-infringing purposes.  Finally, the obligation to achieve balance through exceptions and limitations should be made mandatory.

Mexico Ratifies Marrakesh Treaty

On Wednesday, July 29, 2015, the World Intellectual Property Organization (WIPO) announced that Mexico ratified the Marrakesh Treaty.  The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works.  It would also permit cross-border sharing of these accessible formats, allowing countries to avoid unnecessary duplication of efforts and resources in the creation of these accessible works.  Additionally, the Treaty would facilitate importation of works created in other languages.

With Mexico’s ratification as well as recent news of Mongolia’s ratification, the Marrakesh Treaty is now halfway to the 20 necessary ratifications to enter into force.  Countries previously ratifying the treaty include Argentina, El Salvador, India, Mali, Mongolia, Paraguay,Singapore, the United Arab Emirates and Uruguay.

Bill C-65 in Canada was introduced in June in preparation for accession to the Marrakesh Treaty.  While the United States signed the Treaty in October 2013, signaling an intention to ratify, the Obama Administration has not yet sent the Treaty to the US Senate for ratification.

On the 25th Anniversary of the Americans with Disabilities Act, ARL Urges Swift Ratification of Marrakesh Treaty

On Sunday, July 26, 2015, the Americans with Disabilities Act (ADA) celebrated its 25th anniversary.  The ADA, authored and sponsored by Senator Tom Harkin (D-IA) and passed with strong bi-partisan support, prohibits discrimination on the basis of disability including with respect to education and employment.  The ADA covers a wide range of disabilities and ensures that the civil rights of those with disabilities are protected.  This landmark piece of legislation represented world leadership in the area of promoting the rights of those with disabilities.

ARL has long supported the ADA and efforts to improve accessibility.  Those who are visually impaired or hearing impaired, for example, may face significant obstacles in attaining access to information or culture.  Those with physical disabilities may face limitations in accessing physical spaces.  The ADA helps to promote greater accessibility and protect the rights of those with disabilities.

As the United States celebrates this landmark piece of legislation and the many successes that the ADA has produced, continued efforts are needed to promote the rights of those with disabilities. The United States has a clear and concrete way to improve the rights of the print disabled by improving access to improving access to accessible format works.

In July 2013, the World Intellectual Property Organization (WIPO) concluded a diplomatic conference resulting in the Marrakesh Treaty to Facilitate Access to Published Works for Those Who Are Blind, Visually Impaired or Otherwise Print Disabled. The Marrakesh Treaty creates minimum standards for copyright limitations and exceptions for the creation and distribution of accessible formats and allows for the cross-border exchange of these formats. The cross-border exchange is a critical feature and could greatly alleviate what is known as the “book famine,” a situation in which the National Federation for the Blind estimates that no more than 5 percent of published works are created in an accessible format. The ability to import works from other English speaking countries would aid in growing the collection of accessible format works in the United States and avoid unnecessary duplication of efforts in the creation of these formats. Perhaps of even greater benefit would be the ability to import works in other languages for those in the United States who do not speak English as a first language, such as large populations of Spanish, French, Chinese, Russian, German, Italian, Korean or Vietnamese speaking individuals. It would also benefit those who are learning foreign languages. Significantly, the treaty would allow those in developing countries, which generally have an even smaller number of accessible formats available, to import works from the relatively larger collections in the United States and elsewhere.

In order for the Marrakesh Treaty to enter into force, twenty countries must ratify or accede to the treaty. Currently, nine countries – Argentina, El Salvador, India, Mali, Mongolia, Paraguay, Singapore, the United Arab Emirates and Uruguay – have ratified and eleven more are needed.

The United States signed the Marrakesh Treaty in October 2013, signaling support for and an intention to ratify the treaty, but the Obama Administration has not yet sent the treaty to the US Senate for ratification. The United States should show leadership and be one of the first twenty countries to ratify the treaty. While the ADA has been a great success and 25 years of ensuring the civil rights of those with disabilities is a moment for celebration, more can still be done to improve the lives of those with disabilities.

Mongolia Ratifies Marrakesh Treaty for the Blind; 11 More Needed for Entry Into Force

Mongolia’s Parliament has ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  The Marrakesh Treaty now has a total of nine ratifications or accessions* and eleven more are needed for it to enter into force.  Countries that have previously ratified or acceded to the Marrakesh Treaty include: Argentina, El Salvador, India, Mali, Paraguay, Singapore, the United Arab Emirates and Uruguay.

The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works.  It would also permit cross-border sharing of these accessible formats, allowing countries to avoid unnecessary duplication of efforts and resources in the creation of these accessible works.  Additionally, the Treaty would facilitate importation of works created in other languages.

The United States, which signed the treaty on October 2, 2013, should ratify the treaty to help end the “book famine” where only a small fraction of books, estimated by the National Federation of the Blind at no more than five percent, are created in accessible format.  While the United States has robust limitations and exceptions to allow for the creation and distribution of accessible format works, many countries, particularly those in the developing world, do not and their collections of accessible formats are even smaller than in the United States.  Additionally, persons with print disabilities in the United States would benefit from ratification, not only from the ability to import works from other English-speaking countries, but also because persons who speak other languages or are learning new languages — for example, Spanish, French, Russian or Chinese — would be able to import works in these languages from other countries.  The Administration has reportedly been working on its ratification package, but the package has not yet been sent to Congress.

Canada recently introduced a bill to amend its copyright law in preparation for accession to the Marrakesh Treaty.  The amendments would remove the restriction against creation of a large print book, allow broader export and make changes to the exception permitting circumvention of technological protection measures.  Passing this bill would be the first step toward accession for Canada.

A recent IP-Watch story quoting Michelle Woods from the World Intellectual Property Organization (WIPO) indicated that the twenty total ratifications needed for entry into force could potentially take place later this year, meaning that the Marrakesh Treaty would enter into force in early 2016 (the treaty will enter into force three months after the twentieth ratification).  With eighty signatories to the Marrakesh Treaty, as well as numerous countries that have indicated that efforts are underway to accede to the treaty, hopefully more countries swiftly ratify so that the treaty can enter into force and alleviate the book famine.

*Countries that signed the Marrakesh Treaty during the one-year period in which it was open for signature must ratify the treaty.  Ratification is a two-step process where a country will sign the treaty, signaling that it agrees with the treaty and intends to ratify.  While a signature does not create a binding legal obligation and does not commit a country to ratification, it obliges the country to not commit acts that would undermine the treaty’s objective and purpose.  Countries that did not sign the Marrakesh Treaty can become a party to the treaty through accession, a one-step ratification.  

Bill to Amend Canada’s Copyright Act in Preparation for Accession to the Marrakesh Treaty Tabled in the House of Commons

On June 8, 2015, proposed amendments to Canada’s Copyright Act were tabled in the House of Commons. These amendments, contained in Bill C-65, the Support for Canadians with Print Disabilities Act, would 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”).

This bill follows the April 21, 2015 budget proposal, which signaled an intention to amend the Copyright Act and accede to the Marrakesh Treaty. In that proposal, the Canadian government 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-65 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-65 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.

Additionally, Bill C-65 permits circumvention of technological protection measures, removing the condition that the technological protection measure not be unduly impaired. It instead provides that circumvention is permitted for the sole purpose of enabling those with perceptual disabilities, or non-profit organizations who serve them, to access accessible formats of the work.

Introduction of Bill C-65 is a key first step in acceding to the Marrakesh Treaty. The Marrakesh Treaty currently has 8 ratifications and will need 12 more for entry into force. In the United States, the Administration has been working on preparing its ratification package, but it has not yet been submitted to Congress.

Canada’s Budget Proposes Extension of Copyright Term for Sound Recordings, Ratification of Marrakesh Treaty

On April 21, 2015, Canada released its 500-page budget plan, which includes several references to intellectual property.

Among its copyright proposals, Canada’s Economic Action Plan 2015 proposes to amend the Copyright Act to extend the copyright term of sound recordings and performances from 50 years to 70 years.  The budget states,

The mid-1960s were an exciting time in Canadian music, producing many iconic Canadian performers and recordings.  While songwriters enjoy the benefits flowing from their copyright throughout their lives, some performers are starting to lose copyright protection for their early recordings and performances because copyright protection for song recordings and performances following the first release of the sound recording is currently provided for only 50 years.

Canada currently follows the international standard of providing 50 years of protection for sound recordings.  Canada is involved in the negotiations of the Trans-Pacific Partnership Agreement (TPP), a regional trade agreement with a total of 12 currently negotiating parties including the United States.  The United States has proposed a copyright term of life plus 70 years, or 95 years for published corporate works such as sound recordings.  Other countries with pre-existing bilateral free trade agreements (FTA) with the United States (Australia, Chile, Peru and Singapore)  have pushed back against the extension to 95 years, instead advocating for a period of 70 years, the term that has been agreed to in previous US FTAs.  While the Canadian budget applies only to sound recordings, the proposal could indicate an intention to support the same term in the TPP.

On a more positive note, the new budget includes a number of proposals on “Helping Canadians With Disabilities,” including introducing implementing legislation for the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  The budget calls to improve access to print materials for those who are visually impaired:

The Government will propose amendments to the Copyright Act to implement and accede to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The ability to access printed information is essential to prepare for and participate in Canada’s economy, society and job market. According to Statistics Canada, approximately 1 million Canadians live with blindness or partial sight. The Government will propose amendments to the Copyright Act to implement and accede to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (the Marrakesh Treaty). Aligning Canada’s copyright limitations and exceptions with the international standard established by the Marrakesh Treaty would enable Canada to accede to this international agreement. Once the treaty is in force, as a member country, Canadians would benefit from greater access to adapted materials.

This proposal is a welcome one and ARL urges Canada to move toward swift ratification.  Implementation of the Marrakesh Treaty would greatly improve access to accessible format works.  The Marrakesh Treaty allows for the cross-border exchange of accessible formats, allowing countries to avoid duplication of efforts as they can import existing accessible copies from other countries.  The Marrakesh Treaty currently has 8 ratifications and will need 12 more for entry into force.

Two More Parties to the Marrakesh Treaty: Argentina and Singapore

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled now has eight ratifications or accessions,* with Argentina and Singapore being the latest countries to deposit their notifications with the World Intellectual Property Organization (WIPO).  Countries previously ratifying or acceding to the Marrakesh Treaty include: India, El Salvador, the United Arab Emirates, Uruguay, Mali, and Paraguay.  Twenty ratifications or accessions are necessary for the Marrakesh Treaty to enter into force.

The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works.  It would also permit cross-border sharing of these accessible formats, allowing countries to avoid unnecessary duplication of efforts and resources in the creation of these accessible works.  Additionally, the Treaty would facilitate importation of works created in other languages.

With eighty total signatories to the treaty, hopefully more countries will join the eight current parties to the Marrakesh Treaty and swiftly ratify.  The United States, which signed the treaty on October 2, 2013, should ratify the treaty to help end the “book famine” where only a small fraction of books — estimated by the National Federation for the Blind at no more than five percent — are created in an accessible format.  While the United States has robust limitations and exceptions to allow for the creation and distribution of accessible format works, many countries, particularly those in the developing world, do not and their collections of accessible formats are even smaller than in the United States.  Additionally, persons with print disabilities in the United States would benefit from ratification, not only from the ability to import works from other English-speaking countries, but also because persons who speak other languages or are learning new languages — for example, Spanish, French, Russian or Chinese — would be able to import works in these languages from other countries.

*Countries that signed the Marrakesh Treaty during the one-year period in which it was open for signature must ratify the treaty.  Ratification is a two-step process where a country will sign the treaty, signaling that it agrees with the treaty and intends to ratify.  While a signature does not create a binding legal obligation and does not commit a country to ratification, it obliges the country to not commit acts that would undermine the treaty’s objective and purpose.  Countries that did not sign the Marrakesh Treaty can become a party to the treaty through accession, a one-step ratification.  

UAE Becomes Third Country to Ratify the Marrakesh Treaty

On October 15, 2014, the United Arab Emirates became the third country to ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Print Disabled. The treaty sets forth minimum standards for limitations and exceptions designed to facilitate access to accessible format works for persons who are blind, visually impaired or otherwise print disabled. It would also permit cross-border sharing of these works.

India and El Salvador ratified the treaty earlier this year. The European Commission recently proposed ratification of the Marrakesh Treaty, which needs a total of twenty ratifications for entry into force.

The United States signed the Marrakesh Treaty in October 2013, but has not yet ratified.

European Commission Proposes Ratification of Marrakesh Treaty for the Blind

On October 21, 2014, the European Commission proposed ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled. The EU signed the treaty in April 2014.

From the press release:

Michel Barnier, Vice-President of the European Commission in charge of Internal Market and Services, said “The Marrakesh Treaty will simplify the lives of millions of visually impaired people around the world. The EU can help to improve access to books with equal conditions for all and contribute to the fight against the book famine. The Commission’s proposal is a signal that Europe is ready to support the rapid entry into force of this important Treaty. I count on the Council and the European Parliament to authorise the ratification as soon as possible.” (emphasis added)

Two countries — India and El Salvador — have ratified the treaty which sets forth minimum standards for limitations and exceptions designed to facilitate access to accessible format works for persons who are blind, visually impaired or otherwise print disabled. It would also permit cross-border sharing of these accessible format works, allowing countries to avoid unnecessary duplication of efforts in the creation of accessible format works and also facilitate the importation of works in other languages.

The treaty needs eighteen more ratifications to enter into force. The United States signed the Marrakesh Treaty in October 2013; when will it ratify the treaty?