ARL Policy Notes
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.

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