Tag Archives: VIP Treaty

Obama Administration Sends Marrakesh Treaty to Senate for Ratification

On Wednesday, February 10, 2016, the Obama Administration sent the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled to the U.S. Senate for ratification.  The Marrakesh Treaty, concluded in June 2013 and signed by the United States in October 2013, provides minimum standards for limitations and exceptions to create and distribute accessible formats for the print disabled and allows for the cross-border exchange of these formats.

The cross-border exchange is a critical feature of the treaty and could greatly alleviate what is known as the “book famine,” a situation in which the National Federation of 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 formats in the United States and avoid unnecessary duplication of efforts in creation of these formats.  Additionally, the Marrakesh Treaty allows the import of works in other languages for those in the United States who do not speak English as a first language or for those learning a foreign language.  It would also provide significant benefits to those in developing countries, which generally have an even smaller number of accessible formats available, who could import works from the relatively larger collections in the United States and elsewhere.

President Obama’s Message to the Senate notes that the Treaty “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 opening up a world of knowledge for persons with print disabilities by improving their access to published works.”

ARL applauds the Obama Administration’s transmission of the Marrakesh Treaty to the United States Senate and urges swift ratification of this Treaty.   The Marrakesh Treaty needs 20 ratifications to enter into force; it currently has 14 ratifications and ARL urges the United States to demonstrate its leadership in promoting the rights of persons with disabilities by becoming one of the first 20 countries to ratify the Marrakesh Treaty.

As previously noted by the Library Copyright Alliance, U.S. law complies with the Marrakesh Treaty and can be ratified without changes to current law.  The transmission of the Marrakesh Treaty to the Senate, however, included proposed changes to U.S. law.  ARL looks forward to reviewing these proposed amendments which are not yet publicly available.

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?

India First to Ratify the Marrakesh Treaty for the Blind; 79 Total Signatories to the Treaty

The World Intellectual Property Organization (WIPO) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled now has seventy-nine signatories. This treaty, also known as the “Marrakesh Treaty” or “Treaty for the Blind” was a significant achievement as the first WIPO treaty dedicated to limitations and exceptions, focusing on the rights of users rather than increasing the rights of rightholders. Significantly, India became the first country to ratify the treaty on June 24, 2014 (deposit with WIPO on June 30, 2014).

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 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. For example, a popular title would not have to be created in accessible format work in the United States, then again in Canada, then again in the United Kingdom, then again in Australia, and so forth. It could be created in one English speaking country then shared for the benefit of persons who are visually impaired in other English speaking countries. Persons in the United States could also benefit from this treaty through the importation of accessible format works in languages other than English, either to benefit those residing in the United States whose native language is not English, or to benefit those who are learning a foreign language. Tiflolibros in Argentina, for example, has a large library of Spanish language accessible format works that could be shared with beneficiaries in the United States if the treaty entered into force. More detailed information about the treaty is available in the “Users Guide to the Marrakesh Treaty.”

There was a recent flurry of signing activity due to Article 17 of the Marrakesh Treaty, which closed the treaty to signing one year after adoption of the treaty; June 27, 2014 was the last date for a country to sign. Signing the treaty signals that a country agrees with the treaty and essentially constitutes an endorsement of the instrument. While it does not create binding legal obligations to adhere to the requirements of the treaty, it does oblige the signatory from undermining the treaty’s objectives. Countries that have signed still need to ratify the treaty in order to be bound by it, and twenty ratifications are required before the Marrakesh Treaty will enter into force. Although the treaty is now closed to new signatures, other countries may join the treaty through a one-step process acceding to the treaty (rather than the two-step process of signing then ratifying).

A round of applause should be given to India for being the first (and currently only) country to ratify the Marrakesh Treaty, though it is expected that Kenya will soon follow. India’s swift ratification, within one year after the treaty’s adoption, is a record for any WIPO treaty and signals the importance of the objectives of the treaty.

In addition to the excellent news of the first ratification of the Marrakesh Treaty, there have also been nineteen new signatories over the last two months, twelve of which occurred over the last week. Notably, the EU signed the Marrakesh Treaty on April 30, 2014, and a number of EU member countries followed suit. The new signatories include: Argentina, Australia, Austria, Belgium, the Czech Republic, the European Union, Finland, France, Germany, Greece, Guatemala, India, Iran, Ireland, Mexico, Norway, Poland, South Korea and Slovenia. The United States signed last year on October 2, 2013.

The treaty initially opened for signature at the adoption and signing ceremony of the diplomatic conference on June 28, 2013. Fifty-one countries signed at the adoption and signing ceremony, a record number of signatories on opening day for any WIPO treaty. The full list of the seventy-nine signatories is available here. While this large number of signatories demonstrates the overwhelming support for the Marrakesh Treaty and is a reason for celebration, at least twenty of these signatories must take the next step and sign the treaty so that it may enter into force.

With India depositing its instrument of ratification, only nineteen more are needed. The United States, which already has robust limitations and exceptions to benefit persons who are visually impaired, should demonstrate leadership in this area and be one of the first twenty ratifications.

THE MARRAKESH TREATY

by guest blogger Jonathan Band, policybandwidth

Read the full text of A User Guide to the Marrakesh Treaty

On June 27, 2013, a Diplomatic Conference of the World Intellectual Property Organization (WIPO) held in Marrakesh, Morocco, adopted the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.” The Treaty is intended to promote the making and distribution of copies of books and other published materials in formats accessible to people with print disabilities. The Treaty would achieve this objective by obligating countries signing it (referred to as Contracting Parties) to adopt exceptions in their copyright laws that permit the making of copies in accessible formats as well as the distribution of those copies both domestically and internationally.

ARL worked closely with the U.S. delegation throughout the negotiating process, and through the Library Copyright Alliance was represented in WIPO meetings in Geneva and the Diplomatic Conference itself in Marrakesh.

I. Overview

The copyright law in many countries presents a barrier to the making and distribution of copies of works in formats accessible to the print disabled. The making of a copy in an accessible format such as braille, without the authorization of the rights-holder, could constitute an infringement of reproduction right. The unauthorized distribution of the accessible format copies could constitute an infringement of the distribution or making available to the public right. Similarly, the export or import of accessible format copies could trigger infringement liability.

For this reason, over 50 (primarily developed) countries have adopted exceptions that allow the making and distribution of accessible format copies. However, over 130 WIPO countries, in which the majority of print disabled people live, do not have copyright exceptions relating to the print disabled. Moreover, the existing exceptions do not always explicitly permit the import or export of accessible format copies. Because of the high cost of producing accessible format copies, and the relatively low demand for many individual titles, the ability to share accessible format copies across borders would benefit the print disabled in both developed and developing countries.

The Marrakesh Treaty addresses these problems by requiring Contracting Parties to adopt copyright exceptions that allow, under certain conditions:

  1. the making of accessible format copies;

  2. the domestic distribution of accessible format copies;

  3. the export of accessible format copies; and

  4. the import of accessible format copies.

The Treaty does not dictate how these goals are to be achieved; rather, it provides Contracting Parties with great flexibility concerning the implementation of their obligations. As Article 10(3) provides,

“Contracting Parties may fulfill their rights and obligations under this treaty through limitations or exceptions specifically for the benefit of beneficiary persons, other limitations or exceptions, or a combination thereof….”

The Treaty creates minimum standards for exceptions, with a ceiling presented by existing obligations under the Berne Three-Step Test.

Many aspects of the Treaty (e.g., the focus on actions by “authorized entities”) are similar to the specific exception for the print disabled in the U.S. Copyright Act, 17 U.S.C. § 121, also known as the Chafee Amendment. This similarity is no accident; parts of the Treaty are based on proposals originally offered by the U.S. delegation.

The Treaty represents a significant development in international copyright law because it is the first treaty devoted exclusively or primarily to creating international minimum standards for copyright exceptions. At the same time, it should be remembered that the Berne Convention itself contains exceptions for quotations, illustration in teaching, and news reporting.

51 countries signed the Treaty on June 28, 2013. The Treaty does not take effect until 20 countries ratify it, and then it is binding on the countries that have ratified it. (Under international law, signing a Treaty indicates a country’s support for the Treaty, but is a lesser step than ratification.)

II. The Treaty and U.S. Law

U.S. law currently complies with the Treaty’s requirements, and the United States could ratify the Treaty without amending the Title 17. The relevant exceptions for the print disabled appear in the Chafee Amendment, 17 U.S.C. § 121; the fair use doctrine, 17 U.S.C. § 107 (especially as it has been interpreted by the ARL Code of Best Practices and the recent HathiTrust decision), and the anticircumvention provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 1201. These provisions map favorably against the obligations set forth in Articles 4(1), 5(1), 6, and 7 of the Treaty.

Even though the United States could ratify the Treaty without amending Title 17, the Treaty still has the potential to provide substantial benefits to the print disabled in the United States. This is because the Treaty should result in more Contracting Parties adopting exceptions permitting authorized entities to make accessible format copies and to export them to other Contracting Parties, including the United States.

Because of the high cost of producing accessible format copies, the increased ability to share accessible format copies across borders should result in more titles being available to the print disabled in the U.S. An authorized entity in the U.K. would be able to export an accessible format copy of an English history book to a print disabled professor in New York. Likewise, an authorized entity in Spain would be able to export an accessible format copy of a Spanish novel to a print disabled student in California.

For this reason, ARL supports U.S. ratification of the Treaty.

In particular, we appreciate the efforts of the U.S. delegation. The delegation has had the difficult task of balancing the conflicting demands of many interests…. While I certainly have not agreed with all the positions the U.S. adopted, I understand the conflicting pressures under which it has operated.

Jonathan Band, from his statement at WIPO on behalf of the Library Copyright Alliance, on the occasion of the passage of the treaty for the visually impaired.