Library Group Publishes User Guide To WIPO Marrakesh Treaty

The Library Copyright Alliance (LCA) has released a user guide to the recently adopted “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.” LCA is an organisation representing three major North American library associations.

The Marrakesh Treaty requires its contracting parties to adopt copyright exceptions aimed at improving access to copyrighted works by print-disabled persons. The agreement was adopted by the members of the World Intellectual Property Organization at the end of a diplomatic conference held in Morocco last June (IPW, WIPO, 26 June 2013).

The paper, authored by Jonathan Band and published on 13 August, described the main features of the treaty. It provides explanations of the various provisions of the agreement and its substantive obligations for copyright exceptions to the right of reproduction, distribution, and making available to the public of works in accessible format copies – such as Braille format. The author also illustrates provisions on import-export of accessible format copies and circumvention of technological protection measures.

In addition, the guide indicates that the United States could ratify the Treaty without amending its domestic law, given that current US legislation complies with the agreement’s provisions. Finally, the author suggests the Marrakesh Treaty could benefit visually impaired persons in the US who are interested in reading foreign language books thanks to its import-export scheme.

john e miller says

29/08/2013 at 8:54 am

From the above: “In addition, the guide indicates that the United States could ratify the Treaty without amending its domestic law, given that current US legislation complies with the agreement’s provisions.”

The above statement is the opinion of Counselor Band based upon his reading on Page 19 of Section 602(a)(2) that export of non-infringing copyrighted material is currently allowed under the Copyright Act 1976. However, the first sentence of Section 121 states (in part) that “Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce and distribute … exclusively for use by blind or other persons with disabilities.”

Section 121 then defines at 121(d)(2) via the Pratt-Smoot Act of 1931 that a “blind or other persons with disabilities” is a resident of the USA or its possessions. So it can also be interpreted that under current law any reproduction and distribution to a non-US citizen is NOT a non-infringing use and therefore does not comply with S602(a)(2).

Counselor Band has elsewhere commented that if an Authorized Entity makes an accessible format copy under S121 and distributes it to an eligible person, then the Master or intermediary copy remaining on the server is itself a non-infringing copy and would qualify for export under 602(a)(2); but again, it can also be said that the first sentence of S121 must be taken in its entirety that it is a non-infringing copy ONLY when distributed to someone eligible under S121(d)(2) and that even under current law, distribution to a non-US citizen would be an infringement under S106.

As expressed by Ms. Krista Cox, Staff Attorney for Knowledge Ecology International (KEI), who with the World Blind Union (WBU) helped introduce the (now) Marrakesh Treaty at WIPO SCCR18 in 2009, in a 2012 paper presented to the American Bar Association (ABA) IP Section:

“The U.S.-based entity, Recording for the Blind and Dyslexic (RFB&D), for example, was advised that the copyright limitation existing under U.S. law does not apply extraterritorially. Even where another country permits import of accessible format works, U.S. law does not allow export of these works.”

Comments

john e miller says

29/08/2013 at 8:54 am

From the above: “In addition, the guide indicates that the United States could ratify the Treaty without amending its domestic law, given that current US legislation complies with the agreement’s provisions.”

The above statement is the opinion of Counselor Band based upon his reading on Page 19 of Section 602(a)(2) that export of non-infringing copyrighted material is currently allowed under the Copyright Act 1976. However, the first sentence of Section 121 states (in part) that “Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce and distribute … exclusively for use by blind or other persons with disabilities.”

Section 121 then defines at 121(d)(2) via the Pratt-Smoot Act of 1931 that a “blind or other persons with disabilities” is a resident of the USA or its possessions. So it can also be interpreted that under current law any reproduction and distribution to a non-US citizen is NOT a non-infringing use and therefore does not comply with S602(a)(2).

Counselor Band has elsewhere commented that if an Authorized Entity makes an accessible format copy under S121 and distributes it to an eligible person, then the Master or intermediary copy remaining on the server is itself a non-infringing copy and would qualify for export under 602(a)(2); but again, it can also be said that the first sentence of S121 must be taken in its entirety that it is a non-infringing copy ONLY when distributed to someone eligible under S121(d)(2) and that even under current law, distribution to a non-US citizen would be an infringement under S106.

As expressed by Ms. Krista Cox, Staff Attorney for Knowledge Ecology International (KEI), who with the World Blind Union (WBU) helped introduce the (now) Marrakesh Treaty at WIPO SCCR18 in 2009, in a 2012 paper presented to the American Bar Association (ABA) IP Section:

“The U.S.-based entity, Recording for the Blind and Dyslexic (RFB&D), for example, was advised that the copyright limitation existing under U.S. law does not apply extraterritorially. Even where another country permits import of accessible format works, U.S. law does not allow export of these works.”

Library Group Publishes User Guide To WIPO Marrakesh Treaty

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