The US ratification of the Marrakesh Treaty: what has changed?

Juliette Guillemot Bell

The 1709 Blog is delighted to host the following contribution by Juliette Guillemot Bell on the recent US ratification of the Marrakesh Treaty. 

Here’s what Juliette writes:

“On February 8, 2019, the U.S. Marrakesh VIP Treaty ratification document was formally deposited at the World Intellectual Property Organization (WIPO). The ratification of the Marrakesh VIP Treaty by the U.S. brings the number of contracting parties to 50 and, as of May 8, 2019 [date of entry into force in the U.S.], this Treaty will be effectively implemented in 78 countries (including the 28 member countries of the European Union).

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (aka the “Marrakesh VIP Treaty”) was signed on June 27, 2013 under the auspices of WIPO and became effective on September 30, 2016.

This Treaty establishes exceptions to national copyright laws for the reproduction, distribution, and making available of published works in formats accessible to persons who are blind, visually impaired, or have other print disabilities (such as braille, e-text, audio or large print). It also permits the cross-border sharing of these formats.

Before the Marrakesh VIP Treaty was signed, the U.S. already had mechanisms in place to make copyrighted works available to persons with print disabilities in specialized formats.

Indeed, in 1931, the Library of Congress’s National Library Service for the Blind and Physically Handicapped (NLS) began administering a program for the reproduction and distribution of copyrighted works in specialized formats on a royalty-free basis. However, because the success of this program was dependent on copyright holders granting permission to reproduce their works, in 1996, the Chafee amendment to the U.S. Copyright Act was adopted. This amendment established a limitation on the exclusive rights in copyrighted works by allowing certain entities to provide published works in specialized formats to persons with print disabilities (17 U.S. Code § 121).

The Marrakesh Treaty Implementation Act (MTIA), signed into law on October 10, 2018, aligned U.S. copyright law with the requirements of the Marrakesh VIP Treaty by (1) broadening the scope of section 121 of the Copyright Act, and (2) creating a new section – 121A – to address the cross-border aspects of the Treaty.

Section 121 - “Limitations on exclusive rights: Reproduction for blind or other people with disabilities”

Prior to the adoption of the MTIA, section 121 allowed “authorized entities” to reproduce and distribute copies or phonorecords of previously published “nondramatic literary works” in “specialized formats” exclusively for use by “blind or other persons with disabilities.” While the MTIA did not modify the preexisting definition of “authorized entity” [a nonprofit organization or a governmental agency whose primary mission is to provide specialized services (such as education or information access) to blind or other persons with disabilities], it expanded the scope of copyrighted works, formats, and beneficiaries under section 121:

• Previously, section 121 only covered “nondramatic literary works” and thus excluded, among others, dramatic works (e.g. the published script of a play). The MTIA made section 121 applicable to all literary works, as well as musical works fixed in the form of text or notation. The Marrakesh VIP Treaty contracting parties also clarified in an agreed statement that audiobooks fall within the scope of the Treaty;
• Section 121 no longer refers to “specialized formats,” defined by reference to specific technologies (such as braille, audio, or digital text), but to “accessible formats,” which are defined broadly as an “alternative manner or format” giving an “eligible person” access to a copyrighted work “as feasibly and comfortably” as a person without a disability;
• Section 121 no longer refers to “blind or other persons with disabilities” but to “eligible persons,” i.e. individuals who are blind, have a visual impairment or perceptual or reading disability, or have a physical disability that prevents them from reading normally (for example, a physical disability preventing a person from holding and manipulating a book).

It is worth noting, as clarified by the MTIA, that section 121 only provides limitations on exclusive rights for activities taking place in the U.S. and that the cross-border aspects of the Marrakesh VIP Treaty are dealt with under section 121A (see below).

It is also worth noting that the U.S. did not confine the application of section 121 to copyrighted works that cannot be "obtained commercially under reasonable terms for beneficiary persons in that market," as allowed by the Treaty [Canada, on the other hand, has opted to use this possibility], and did not make the limitations on exclusive rights under section 121 subject to remuneration (also allowed by the Treaty).

Section 121A - “Limitations on exclusive rights: reproduction for blind or other people with disabilities in Marrakesh Treaty countries”

Section 121A addresses the cross-border aspects of the Marrakesh VIP Treaty by allowing the exportation and importation of copyrighted works in accessible formats between the U.S. and other countries who have signed the Marrakesh VIP Treaty. Authorized entities may export copies of copyrighted works (as defined under section 121) in accessible formats to either (a) another authorized entity in a country that is a party to the Marrakesh VIP Treaty, or (b) an eligible person in such a country, provided that the exporting entities do not know or have reasonable grounds to know that the copies will be used other than by eligible persons. In addition, authorized entities, eligible persons, and agents of eligible persons may import copies of copyrighted works in accessible formats.

Section 121A also provides that authorized entities engaged in such activities must establish and follow their own practices to:

• Ensure they serve “eligible persons” (as defined under section 121);
• Limit the distribution of accessible format copies to eligible persons and authorized entities;
• Discourage the further reproduction and distribution of unauthorized copies;
• Maintain due care in, and records of, their handling of copies of copyrighted works, while respecting the privacy of eligible persons; and
• Make publicly available the titles of works for which they have accessible format copies (and the formats in which they are available), as well as information on their policies, practices, and authorized entity partners.

The ratification of the Marrakesh VIP Treaty by the U.S. marks an important milestone in addressing the 'global book famine,' referring to the fact that over 90% of all published materials cannot be read by persons with print disabilities. According to WIPO Director General Francis Gurry “The U.S. already houses the world’s largest repository of accessible English-language material, representing a major increase in the global resource base for visually impaired people living in countries that have joined the Marrakesh Treaty.""