The Marrakesh Treaty expands Section 121 of the Copyright Act to include all literary works, plus musical works fixed in the form of text or notation. It also offers a broader definition of formats that may be produced in an effort to ensure that all beneficiaries have access to works that is equivalent to a person without a disability.
According to the World Blind Union, of the millions of books published each year, approximately only 1-7 percent are made available to those who are visually impaired. On January 28, President Donald J. Trump signed the documents for the United States to ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. The treaty was adopted in Marrakesh, Morocco in 2013. The goal of the copyright treaty is to increase access to printed materials for those with visual or other disabilities. The treaty is administered by the World Intellectual Property Organization (WIPO).
The treaty introduces certain exceptions to copyright law that allow for the creation of alternative formats of published works for “Beneficiaries”—that is, those who are blind, visually impaired, print disabled, or who have a physical disability that prevents them from holding print materials, such as a book. It also facilitates the exchange across borders of such alternative formats with other member countries. The treaty also places limitations on these exceptions to protect right-holders, such as publishers. Under the treaty, “Authorized Entities” are allowed to perform certain acts that are otherwise prohibited under copyright law. Member States may create formalities to designate “Authorized Entities.” In the U.S., Authorized Entities are defined as nonprofit or governmental entities with a primary mission to serve eligible persons. Authorized Entities must ensure that the alternative format works are for use only by beneficiaries.
A Long Time Coming
While the U.S. just ratified the Treaty, the President signed the Marrakesh Treaty Implementation Act on October 18, 2018 and the Library of Congress and U.S. Copyright Office have been working on the treaty for a long time. Beginning as far back as 2009, the Copyright Office, in conjunction with the USPTO and others, have been working on addressing the shortage of alternative formatted works for the visually impaired, known as the “Book Famine.” Implementation legislation involved Congress consulting with various stakeholders, including the blind community, publishing sector, and library communities. While the U.S. has established limitations and exceptions allowing certain authorized entities, such as the Library of Congress’s National Library Service for the Blind and Physically Handicapped (NLS), to provide published works in alternative formats, the Marrakesh Treaty modifies Section 121 of the Copyright Act (also known as the “Chaffee Amendment”) to comply with the key terms and definitions of the treaty. This section already allowed “authorized entities” to reproduce or distribute copies of previously published “nondramatic literary works” in alternative formats for use exclusively by the visually impaired. The treaty expands the section to include all literary works, plus musical works fixed in the form of text or notation. In addition, the changes offer a broader definition of formats that may be produced in an effort to ensure that all beneficiaries have access to works that is equivalent to a person without a disability.
The treaty also adds a new section, 121A, which allows authorized entities to both export and import works in accessible formats between the U.S. and other Member States. Exports must go to authorized entities in the receiving country. NLS will not be allowed to export works, due to another provision in U.S. Copyright Law that limits its activities to the United States. Entities importing or exporting works in alternative formats must take steps to ensure that works are only serving eligible persons, limit unauthorized distribution and copying, maintain records, and make publicly available a list of its accessible format works.
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