The Marrakesh Treaty Implementation Act: A More Inclusive Way to Spread Information

On March 15, the Marrakesh Treaty Implementation Act of 2018 (Act) — which would amend U.S. copyright law to allow the U.S. to implement its obligations under the Marrakesh Treaty — was introduced by Senators Chuck Grassley, Bob Corker, Dianne Feinstein, Bob Menendez, Kamala Harris, Orrin Hatch and Patrick Leahy. Later this week — on Thursday, May 10 — the Senate Judiciary Committee is scheduled to consider the legislation.

The Marrakesh Treaty was adopted by the World Intellectual Property Organization in June 2013 with the goal of facilitating access to works by persons with visual impairments in a way that recognizes the importance of copyright protection as an incentive and reward for literary and artistic creations and enhances opportunities for everyone. President Obama transmitted the treaty to the Senate in February 2016 for its advice and consent.

The introduction of the new bill reflects the welcomed commitment of the U.S. to foster more inclusive ways to spread information in a manner that is consistent with the goals of copyright law. The Act proposes to build on existing U.S. national copyright law aimed at providing accessible copies to “blind or other persons with disabilities” found in §121 of the Copyright Act. The heart of this section provides that:

“it is not an infringement of copyright for an authorized entity to reproduce or distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.”

Although the intent of this section aligns with that of the Marrakesh Treaty, there is a need for clarity and amendments to the section in order for it to fully comply with the treaty’s goal of having its signatories provide for an exception to the limitations on reproduction and distribution of published works in copyright law and facilitation of the exchange of these copies amongst countries party to the treaty.

The new Act proposes to remove certain language in this section that limits the scope of the provision, such as the word, “nondramatic” to extend the provision’s application to dramatic literary works as well. The Act also changes some of the provision’s existing terms and adds terms to provide clarity on its scope and application. For example, the act proposes to replace “blind or other persons with disabilities” with “eligible persons,” a term also defined in the Act, in order to ensure that individuals who may not fit conventionally into the two previously mentioned categories, but nonetheless require access to specialized formats of published works, may still benefit from the provision. Additionally, the Act proposes to replace “specialized formats” with “accessible formats,” defined in the Act as well, to broaden the scope of the type of formats the reproduced and distributed copies can exist in, such as braille copies or digital file copies.

Perhaps the most noticeable change proposed by the Act is the addition of a new section (§121A) titled, “Limitations on exclusive rights: reproduction for blind or other people with disabilities in Marrakesh Treaty countries.” This addition is intended to permit the import of accessible format copies, as well as the export of such copies to other countries also party to the Marrakesh Treaty.

Together, these amendments to §121 strike a balance between enhancing eligible persons’ access to literary works and maintaining the copyrights of the individuals that created these works. Various organizations including the Copyright Alliance, the Association of American Publishers, the National Music Publishers’ Association, the Authors Guild, the National Federation for the Blind, and Public Knowledge have voiced their support for the bill and look forward to implementation of the Marrakesh Treaty.

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