Marrakesh Treaty Implementation Act, S. 2559, 115th Cong. (2018)
In mid-March, the Marrakesh Treaty Implementation Act (“Act”) was introduced in the Senate to implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty”) adopted in 2013 by the World Intellectual Property Organization (“WIPO”). The Act is sponsored by Senators Chuck Grassley (R-IA), Bob Corker (R-TN), Dianne Feinstein (D-CA), Bob Menendez (D-NJ), Kamala Harris (D-CA), Orrin Hatch (R-UT), and Patrick Leahy (D-VT).
Print disabled people face a shortage of access to written work, as only 7% of published books are available in an accessible formats, and that number falls to 1% in less developed countries (WIPO Press Release). The Marrakesh Treaty was adopted to ensure access to books for print disabled people by carving out exceptions to copyright laws for producing and distributing written works in accessible formats. This was the first exception to copyright laws adopted by the WIPO for the purpose of protecting the rights of users as opposed to the interests of copyright holders.
Existing U.S. laws provide some copyright exceptions to provide access for the print impaired. In 1996, Congress passed the Chafee Amendment that would eventually form Section 121 of the U.S. Copyright Act, granting a copyright exception for authorized entities to reproduce and distribute published, nondramatic literary work in specialized formats for the exclusive use of blind or other persons with disabilities. 17 U.S.C. § 121(a). “Specialized formats” included braille, audio or other digital texts. “Blind or other persons with disabilities” are defined as those qualifying for the National Library Service for the Blind and Physically Handicapped of the Library of Congress (“NLS”) (National Federation for the Blind). The NLS provides services to all blind adults and children and “individuals with physical impairments that prevent the reading of standard print” (NLS). However, this exception does not afford the same level of access as proposed by the Marrakesh Treaty. The Act seeks to change that by (1) expanding the existing exception and (2) creating a new copyright exception for the export and import of accessible works to and from other countries.
First, the Act seeks to amend Section 121 of the U.S. Copyright Act by expanding it beyond literary work to include music in the form of text or notation. The Act also proposes to strike down the “nondramatic” limitation on exempted literary work. These proposals will have the effect of expanding the set of written work exempted from copyright laws under Section 121. Notably, the NLS began providing access to music in 1952, and this amendment will expand the capabilities of the NLS to provide that service. The Act further seeks to replace “specialized formats” with “accessible formats” and “blind or other persons with disabilities” with “eligible persons.” The definitions of “accessible formats” and “eligible persons” are technically broader and more flexible than their predecessors, but do not significantly alter the set of formats or beneficiaries already covered by Section 121.
Second, the Act seeks to create Section 121(A) to address “reproduction for blind or other people with disabilities in Marrakesh Treaty countries” to implement the Marrakesh Treaty’s copyright exception for sharing reproduced works for the print impaired across countries. The Act would create a copyright exception for the export of reproduced literary work or notated music to any authorized entity or eligible person located in a country that is a party to the Marrakesh Treaty. The Act also proposes a corresponding exception for imports of reproduced works for eligible persons (however, given that the U.S. Copyright Act lacks extraterritorial powers, it is unclear if this provision has any legal bearing).
If these proposals pass, the U.S. will be the 37th country to ratify the Marrakesh Treaty, providing print impaired persons in developing countries like Argentina, Mexico and Brazil with access to previously inaccessible literary works and music protected by U.S. Copyright Law. In addition, print impaired persons in the U.S., especially Spanish speakers, stand to benefit from the importation of foreign language works that are now exempted from foreign copyright laws under the Marrakesh Treaty. The Act has garnered widespread support from beneficiaries like the National Federation for the Blind and the American Library Association to advocacy groups like the Copyright Alliance and the Authors Guild.
Yi Yuan is a 1L student at Harvard Law School.