Tag Archives: accessibility

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.

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.  

End of the Authors Guild v. HathiTrust Saga, A Victory for Fair Use

For the past several years, the HathiTrust and five of its member universities have been engaged in litigation after being sued by the Authors Guild. On January 6, 2015, the parties entered a settlement on the sole issue remaining before the district court, ending the litigation in a victory for HathiTrust and fair use.

In its litigation, the Authors Guild alleged that HathiTrust Digital Library’s (HDL) digitization of works for the purposes of use in a full-text search database, providing access to the print disabled, and preservation, as well as the Orphan Works Project developed by the University of Michigan, constituted copyright infringement. The Orphan Works Project was abandoned and not considered ripe for adjudication, while the other issues advanced. The district court found in favor of HDL’s motions for summary judgment on the remaining three issues.

In June 2014, the Court of Appeals for the Second Circuit strongly affirmed fair use, finding that HathiTrust Digital Library’s creation of a full-text search database and providing access to the print disabled constituted fair use. On the issue of preservation, the Second Circuit remanded back to the district court – without determining the merits of whether such preservation constituted fair use – to determine whether the plaintiffs had standing to bring the claim. In its press release on the opinion, the Library Copyright Alliance applauded the decision noting that the

 Second Circuit rightly concluded that HDL’s activities are protected by fair use, ensuring the ‘safety valve’ of fair use is well-functioning and providing meaningful balance through limitations on the copyright holder’s rights. Fair use has long been relied upon to provide important protections for the public and promote new and transformative uses of copyrighted works, such as those facilitated by HDL.

Summaries and analysis of the Second Circuit’s opinion available here and here.

On January 6, 2015, the Authors Guild and HathiTrust settled the preservation issue, with the defendant libraries stipulating that they have complied with Section 108(c) of the Copyright Act and have only made replacement copies where the original was damaged, deteriorating, lost or stolen, and that an unused replacement could not be obtained at a fair price. The defendant libraries further agreed that for a period of five years, if the libraries do not comply with the stipulation, it will notify the Authors Guild, “which, although not a Remaining Plaintiff in this Action, will accept notice.”

While an appeal to the Supreme Court would still be possible, it appears from a release issued by the Authors Guild today that the Guild will not pursue this path. The Authors Guild begins its release noting that the settlement “brought to an end the Guild’s copyright infringement lawsuit against the group of research libraries known as the HathiTrust.”

Ultimately, the Authors Guild v. HathiTrust saga ended in a strong victory for fair use as the Second Circuit opinion will now stand. The library community applauded this opinion when it was released. The opinion had a number of notable implications. It strongly affirmed the use of mass digitization for purposes of facilitating fair uses (such as creation of a full-text search database or access for the print disabled). The Second Circuit also endorsed a “functional transformation” approach in conducting its fair use analysis, finding that a use is transformative if the works is used for a significantly different purpose than its original market purpose. Additionally, the Second Circuit, in a quick footnote, rejected the Authors Guild’s repeated claims that Section 108 of the Copyright Act restricts fair use.

Furthermore, while the parties settled the issue of preservation for purposes of use as a replacement copy, essentially noting that the parties will comply with Section 108(c) of the Copyright Act, practically speaking, as noted by Jonathan Band’s analysis, What Does the HathiTrust Decision Mean for Libraries?, libraries engaged in the activities of HathiTrust can make digital copies:

Because providing full-text search capability justifies the creation and maintenance of a database of text files, a library could create and maintain a database of text files if the library provided full-text search capability of those text files. Likewise, because access to the print disabled justifies the creation and maintenance of a database of image files, a library could create and maintain a database of image files if the library provided the print disabled with access to those image files. Additionally, the library could create appropriate backup copies of these databases.




In short, the HathiTrust decision indicates that a library could make digital copies of all the analog works in its collection, and store those copies as text and image files, if the library provided full text-search capability and full-text access to the disabled.

HathiTrust’s press release on the resolution of the litigation is available here.

ARL and ALA File Comments Opposing E-Reader Waiver Extension and Disability Tax

On October 27, 2014, the Association of Research Libraries (ARL) and the American Library Association (ALA) filed comments* with the FCC opposing the petition for waiver extension by e-reader manufacturers. On January 28, 2014, the FCC granted a one-year waiver of its advanced communication services (ACS) accessibility rules for “basic e-readers” considered to be “single-purpose reading devices that consumers use for accessing text-based works (i.e., reading), not for other purposes such as ACS.” The e-reader manufacturers recently filed a petition requesting an extension of this waiver, which essentially creates a tax for disabled persons purchasing basic e-reader devices.

In the filing, ARL and ALA explain how basic e-readers are used, including for “co-primary uses” which allow the user to connect to the Internet and use the device to communicate with others via e-mail and social media services. ARL and ALA oppose the extension of the waiver, noting that denying the e-reader manufacturers’ petition “is consistent with the public interest. Finally, ARL and ALA argue that if a waiver is extended, that the FCC should narrow the scope of the waiver class and limit its duration. The full comments can be found here.

The comments focus on heavily on the public interest, noting:

As discussed above, the Kindles and other basic e-readers are capable of accessing ACS in potentially very convenient and useful ways. Access to these features on these devices, by disabled persons weighs heavily in the public interest. A denial of the waiver extension will increase public access to ACS through the Coalition’s e-readers. By requiring that the Coalition include accessible ACS functionality with the browser, the Commission will be supporting increased access for print-disabled members of the public through universally designed devices available to all consumers

Appallingly, the e-reader manufacturers defend their request for extension by arguing that persons with disabilities can purchase a more expensive device to address accessibility needs. ARL and ALA also point out that this proposal effectively creates a disability tax. Furthermore, not only would the proposal require a disabled person to pay more for a device with accessibility features, but such devices also have drawbacks such as heavier weight and less battery life:

Under the current e-reader ACS regime proposed by the Coalition and tentatively adopted by the Commission, disabled persons must pay a ‘device access tax’. By availing oneself of one of the ‘accessible options’ as suggested by the Coalition, a disabled person would pay at minimum $20 more a device for a Kindle tablet that is heavier and has less battery life than a basic Kindle e-reader. There is also some irony that the Commission’s current waiver rules would suggest that a blind person would need to purchase a device that is marketed for its screen with a high refresh rate, high resolution, and vibrantly colored screen in order to get the proper accessibility. In order to get the features that they do need, the blind will be forced to pay for an array of features from which they cannot benefit. It is completely inappropriate to ‘tax’ those with disabilities who seek information on the same terms at the sighted. By requiring that all of the Coalition’s products include accessible ACS, it opens a market for the print-disabled for the same e-readers at the same price points as for other sectors of the public.

ARL and ALA oppose extension of the waiver, but suggest that if the Commission does extend it, the Commission should amend the current waiver class and ensure that the extension is time-limited. ARL and ALA note that the “the current slate of basic e-readers offered by Coalition members do not fall under even this overly-expansive waiver class, sufficient evidence and the public interest weigh heavily in favor of modif[ication].” The comments suggest that one of the requirements be amended to read “the device is not offered or shipped to consumers with built-in ACS client applications, including any browser, and the device manufacturer does not develop ACS applications for its respective device” so that those e-reader devices that have a co-primary uses, such as to access e-mails, are not exempted. The comments note that with this amendment, “Any truly single purpose non-ACS devices will still fall under the proposed waiver class should the Coalition seek waiver in the future.”

*These comments were prepared in collaboration with students from American University Washington College of Law’s Glushko-Samuleson Intellectual Property Law Clinic*

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?

Web Accessibility Toolkit for Research Libraries Launched by ARL

On the third annual Global Accessibility Awareness Day (#GAAD), May 15, 2014, the Association of Research Libraries launched a new resource for the library community—a Web Accessibility Toolkit for research libraries. ARL’s toolkit shares the fundamental goal of GAAD which is to ”raise the profile” of digital accessibility and provide resources for improving access to information to “the broadest audience possible.” The toolkit aims to:

  • Promote the principles of accessibility, universal design, and digital inclusion.
  • Help research libraries achieve digital accessibility.
  • Connect research libraries with the tools, people, and examples they need to provide accessible digital content.

The lead author on the Web Accessibility Toolkit was Molly Schwartz, a member of the inaugural class of the National Digital Stewardship Residency (NDSR) program who was in residence at ARL in 2013–2014. The NDSR program is a deeply valuable partnership between the Institute of Museum and Library Services and the Library of Congress. The mission of NDSR “is to build a dedicated community of professionals who will advance our nation’s capabilities in managing, preserving, and making accessible the digital record of human achievement. This will enable current and future generations to fully realize the potential of digital resources now and for years to come.”

Since the inaugural NDSR class was selected to work in Washington, DC–area institutions, the program has been extended to New York and Boston. More information on these new fellowship opportunities is available on the NDSR website.

ARL’s engagement on issues relating to accessibility includes providing resources to ARL member libraries—such as the Report of the ARL Joint Task Force on Services to Patrons with Print Disabilities (PDF)—and strongly advocating over a number of years at the World Intellectual Property Organization for a treaty for the visually impaired, which was approved in June 2013. The “Marrakesh Treaty” will significantly improve access to books for millions of people who are blind, visually impaired, and print disabled. ARL hopes its new Web Accessibility Toolkit will help libraries continue to improve access to resources for all of their patrons, regardless of ability or disability.


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.