On March 15 the Marrakesh Treaty Implementation Act (S. 2559) was introduced in Congress, moving the United States closer to implementing 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 2013 by the World Intellectual Property Organization (WIPO)—the United Nations international copyright arm—at an international diplomatic conference in Marrakesh, Morocco, and has since been ratified by 36 countries. The United States and the European Union have yet to ratify the treaty. The bipartisan bill was introduced by senators Chuck Grassley (R-IA), Bob Corker (R-TN), Dianne Feinstein (D-CA), Bob Menendez (D-NJ), and cosponsored by Kamala Harris (D-CA), Orrin Hatch (R-UT), and Patrick Leahy (D-VT). If passed, S. 2559 will amend Section 121 of the U.S copyright law to authorize American libraries to create and share accessible format copies of books and other copyrighted works for people with print disabilities across international borders, modifying them as Braille or large print texts, audiobooks, or digital files. Adoption of this copyright exception will greatly increase access for English speakers around the world with print disabilities, which include dyslexia and physical disabilities that make turning the page of a print book impossible. It will also enable American libraries to provide foreign-language content to non–English speakers in the United States. While U.S. copyright law currently contains provisions allowing material to be adapted for accessibility domestically, the bill will allow works to be sent between the United States and other countries that have signed the Marrakesh Treaty. The World Health Organization estimates that there are 285 million print disabled people worldwide, 21 million in the United States [Editor's note: The total number of print disabled persons as eligible beneficiaries per Article 3 of the Marrakesh Treaty—when the approximately half billion or more persons worldwide with dyslexia are included as well as other qualifying physical disabilities—is closer to the one billion range]. Currently, visually impaired users in developing countries have access to only one percent of published books in accessible formats.

LAYING THE GROUNDWORK

The American Library Association (ALA) first became involved in advocating for a copyright exception for modifications to materials for the print disabled in 2008 in order to address what the World Blind Union (WBU) termed the “book famine” affecting the print disabled community. "A bunch of factors were coalescing at the same time in terms of advocacy for access to more reading materials within the blind and print disabled community,” explained Mike Marlin, director of the California State Library’s Braille and Talking Book Library. These included alliances such as the Reading Rights Coalition—a group of 31 organizations created in 2009 to advocate for greater accessibility in ebooks and audiobooks, in particular text-to-speech functionality for Amazon’s Kindle 2 ebooks—as well as the general push to bring ebooks into libraries. The ALA Washington Office worked with the Library Copyright Alliance (LCA), which includes the Association of College and Research Libraries (ACRL) and Association of Research Libraries (ARL), to apply for official nongovernmental status to attend and speak at World Intellectual Property Organization (WIPO) meetings. LCA offered input to the U.S. delegation for five years, with the help of the International Federation of Library Associations (IFLA), WBU, National Federation of the Blind (NFB), and other organizations for those with print disabilities. WBU, with the assistance of copyright experts, drafted a treaty proposal that was proposed in 2009 by the governments of Brazil, Paraguay, and Ecuador. The WIPO Standing Committee on Copyright and Related Rights, which meets twice a year, considered the treaty proposal at its June 2011 session; ultimately some 600 WIPO delegates would enter into the debate over the treaty around issues such as technological protection measures, fair use, fair dealing, and the Berne three-step test, a clause included in international treaties on intellectual property. In addition to the work being done by WIPO, on April 2012 the Governing Board of IFLA endorsed the Manifesto for Libraries Serving Persons with a Print Disability, developed by IFLA’s Libraries Serving Persons with Print Disabilities (LPD) section. The manifesto called on libraries “to improve and promote accessible library and information services to persons with a visual impairment or any other print disability,” noting that at the time, less than five percent of all published materials and reportedly less than 20 percent of websites were accessible to those with print disabilities. “IFLA supports efforts to ensure that copyright legislation enables equal access by people with a print disability to information from all libraries and information providers,” it stated. The IFLA manifesto was created as an international tool for “people in the trenches to use in advocating within their different legislative or government spheres,” noted Marlin, who serves as ALA/Association of Specialized & Cooperative Library Agencies (ASCLA) Representative to the IFLA LPD Section. “Libraries are pretty strong in the United States, but in other countries it had more of an effect. Like Egypt, for example, where they're currently negotiating new legislation, the manifesto was cited by Egypt's parliament."

ADOPTION, RATIFICATION

In June 2013 the treaty was adopted by WIPO in Marrakesh. In his speech closing the Marrakesh conference, WIPO Director General Francis Gurry referenced “the book famine that causes over 300 million visually impaired persons, the majority of them in developing countries, to be excluded from access to over 90% of published works.” The treaty, he noted, “provides a framework for addressing that problem which is simple, workable and effective…. [It] respects the architecture of the international copyright system, thus achieving what so many of the delegations have described as a fair balance.” The treaty also represented the first major exception to copyright law for libraries, demonstrating international support for provisions that would permit the reproduction, distribution, and provision of access to published works in accessible formats. “That's a very important element of this treaty,” ALA president Jim Neal told LJ. “It's consistent with how we work in copyright in the United States, where we have a set of rights to which the law then introduces various exceptions and limitations—some very specific, like this one, and some more general, like fair use." By the conference’s end 51 countries had signed the treaty, but ratification or accession by 20 states—a separate process, often requiring revisions to each country’s copyright laws—was required for it to enter into effect. In order to ratify the treaty, a country needs to have a copyright exception law (a provision allowing for copyrighted works to be used without a license from the copyright holder) in place, and many states needed to pass their own such legislation before ratifying the treaty. In 2014 the Accessible Books Consortium (ABC) was created as a public-private partnership with WIPO to help advance the treaty’s objectives. ABC members include the WBU, libraries for the blind, standards bodies, author representation organizations, publishers, and collective management organizations. By mid-2016 the treaty had been ratified or accessioned by India, El Salvador, United Arab Emirates, Mali, Uruguay, Paraguay, Singapore, Argentina, Mexico, Mongolia, Republic of Korea, Australia, Brazil, Peru, Democratic People’s Republic of Korea, Israel, Chile, Ecuador, Guatemala, and Canada; the treaty entered into force on September 30, 2016. Since that time, it has been ratified or accessioned by Saint Vincent and the Grenadines, Tunisia, Botswana, Sri Lanka, Liberia, Panama, Honduras, the Kyrgyz Republic, Kenya, Malawi, Burkina Faso, Nigeria, Costa Rica, the Russian Federation, and Moldova. It has been signed by 84 countries. Ratification by the EU, which requires negotiations and compromises among all 28 member states—only some of which have copyright exception and limitation laws in place—is hoped for by the fall. “The fact that an expanding number of countries around the world have implemented the treaty offers the opportunity for this concept of library exceptions and limitations to be embraced on a wider scale around the world," noted Neal.

AWAITING RATIFICATION

Although the United States was a signatory of the original treaty, modifications to U.S copyright law are still required for ratification. While the Marrakesh Treaty already accords with U.S. law, adoption will need to amend the U.S. Copyright Act to ensure compliance. For the past five years copyright stakeholders, including the LCA, NFB, and the American Association of Publishers (AAP), have been working with ALA and organizations representing the visually impaired, libraries, and rights holders on an accord to amend the legislative language. Issues included usage, documentation, and how to ensure that end users would be among the intended print disabled audience. "What's important is that we have achieved that compromise,” Neal told LJ, “Not only did the interests of the community come together to negotiate the language of the bill, but also it elicited support from both Republicans and Democrats." He added, "The fact that we were sustaining that conversation over five years indicates the good will of the parties involved, but also recognizes the complexities of implementing such an important change." Once the treaty is ratified in the United States, libraries will need to institute policies, procedures, and work flows to implement it—a major undertaking in itself. "For example,” said Marlin, in the United States “we have the National Library Service for the Blind.... It produces Braille as well as talking books, distributes them through download, through physical production—how will that work in terms of my authorized entity library borrowing something from the Croatian Library for the Blind, or the Philippines Library for the Blind? We have a lot of Tagalog as well as Russian and Chinese patrons here in CA. So how will I get that? It's mostly just the logistics of how do we create an international union catalog, how are the documents protected and transferred?" IFLA is working on an implementation guide in partnership with WBU, which will be released at some point in 2018. "We just worked on a final draft at our meeting in Brussels the last week in February,” Marlin told LJ, “so we're waiting for the writing group to come back to us with the final version.” S. 2559 has been referred to the Committee on the Judiciary. Once it has been approved with a two-thirds majority in the Senate, the president can formally ratify it. (Despite earlier concerns, ratification will not be linked to the ratification of the Beijing Treaty on Audiovisual Performances, which benefits the motion picture industry and is unrelated to the Marrakesh Treaty.) Once the treaty has been ratified, it will enable sharing of accessible materials in both directions—from delivering a Braille edition of The Grapes of Wrath to an English-speaker abroad to bringing non-English-language works to customers in the United States. “I have a lot of Mandarin Chinese speaking patrons who are blind, and there's just not a whole lot for us to give them,” said Marlin. For Spanish speakers with print disabilities in particular, “you have all these countries in Latin America who have already ratified so that would really open things up…. They'd be able to read all kinds of novels, self-help books, cookbooks, for example, in Spanish, that they don't have access to now." The implementation of the Marrakesh Treaty is also a civil rights issue, Marlin noted, in alignment with ALA’s core value of Equity, Diversity, and Inclusion. "It dovetails on the Americans with Disabilities Act, which is the idea of universally designed access to places. This is sort of the accessibility equivalent of it for reading.” Print disabled readers have access to a small percentage of published works, he added, “because of our wonderful public sector agencies like the Library of Congress, but beyond that it's become a monetary impediment to most people, especially people on fixed incomes….  And this would hopefully also allow public libraries to provide more support for these populations." And ratification would not only support print disabled customers. "There are a lot of folks who work in the Library for the Blind network who have visual impairments,” Marlin told LJ, “but there are only a few actual degreed librarians. And the ones that I know are working really hard to pass this thing because we see this as [an issue of] our civil rights: accessibility for all, a universally designed society, so that everyone can participate…. Any way we can increase the diversity within professional librarianship, or just library workers in general, would be wonderful. And this might be one way of getting there." Supporters are encouraged to contact senators who sit on the Senate Judiciary Committee or Senate Foreign Relations Committee and ask them to cosponsor the Marrakesh Treaty Implementation Act. Visit ALA’s Action Center for information on how to contact your elected officials.