It has been more than two years since the United States signed the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, a historic international agreement that will allow blind Americans to gain access to millions of books in Braille, audio, and other formats produced abroad.
Essentially, the treaty promotes uniformity in international copyright law so that producers of accessible books throughout the world can allow readers in any country to access their collections. So if a blind student in this country needs access to a book in a foreign language that she is studying, and that book isn't available from a United States producer, she will be able to get it from a producer in the country where the language is spoken.
Although this treaty has been signed by the United States, it has not yet been ratified by the Senate as required by our Constitution. This isn't because of Senate inaction, but because the White House has not yet submitted the treaty for ratification. The holdup is due to preparation of the "ratification package," a set of documents that outlines how the treaty will be implemented.
The National Federation of the Blind believes that further delay is unnecessary and unacceptable. For that reason, I have written to President Obama to urge his administration to give the blind of America more books for Christmas by submitting the ratification package to the Senate before the year is out. The full text of my letter follows.
December 11, 2015
The Honorable Barack Obama
President of the United States
The White House
1600 Pennsylvania Ave NW
Washington, DC 20500
Re: Urgent Need to Forward the Marrakesh Treaty to the Senate
Dear President Obama:
I last wrote to you on September 10 of this year, emphasizing the urgent need to send the Marrakesh Treaty to the Senate without delay. We are greatly concerned that the ratification package still has not been released and that the window of opportunity to ratify this life-changing agreement within your term is closing. We urge you in the strongest possible terms to direct your administration to transmit the treaty before the end of 2015.
Due to the general practice that is followed in developing a ratification package of this nature, we in the public have not seen any of the language contained in the draft ratification and implementing legislative packages. Nevertheless, as is also customary in these proceedings, rumors abound regarding language being considered. We wish to address two issues that we understand have been delaying the process as of late.
One issue concerns to whom authorized entities in the United States may export accessible-format works. Apparently there has been a debate about whether authorized entities here in America should be restricted to sending accessible-format copies only to other contracting parties of the Marrakesh Treaty. Others have apparently argued that our authorized entities ought to be able to transmit accessible-format copies to any authorized entity or beneficiary person who meets the requisite definitions in the treaty. We urge the broadest implementation of the Marrakesh Treaty so that our collection of accessible books and materials can be shared with the blind and print disabled throughout the world who desperately need access to information. As long as an authorized entity carries out its obligations under the treaty, there is virtually no concern that an accessible-format copy will end up in the wrong hands or otherwise be abused.
Second, we have also been given to understand that some are advocating for greater restrictions on our authorized entities that go beyond that which the treaty requires. We are confident that the definition of authorized entity contained in the treaty text protects rights holders and establishes a system designed to serve blind and print-disabled individuals adequately. Following a formal definition of "authorized entity," Article 2, Subsection C is descriptive. It says, "An authorized entity establishes and follows its own practices:
(i) to establish that the persons it serves are beneficiary persons;
(ii) to limit to beneficiary persons and/or authorized entities its distribution and making available of accessible-format copies;
(iii) to discourage the reproduction, distribution and making available of unauthorized copies; and
(iv) to maintain due care in, and records of, its handling of copies of works, while respecting the privacy of beneficiary persons in accordance with Article 8."
The above quoted section of the treaty is designed to give authorized entities wide latitude in fulfilling their defined service role. This arrangement was the result of hotly contested negotiations, and represents a compromise reached among all stakeholders to this process, including the blind, authorized entities, and rights holders. There must not be additional requirements on United States authorized entities that are more restrictive than existing Section 121 provisions of the US Copyright Act. The result would be to discourage our authorized entities from importing and exporting accessible materials and therefore allow the book famine to persist.
Specifically, the additional burdens being considered for our authorized entities appear to deal with the issue of record keeping. Although Marrakesh describes authorized entities as maintaining records, it contains no prescription as to how this is to be done. Authorized entities must have this flexibility to maintain their own procedures and protect the privacy of their beneficiaries. In fact, Article 8 of the treaty requires that the privacy of beneficiaries be fully protected. Neither rights holders nor anyone else should be able to obtain specific information about who is receiving accessible copies or what works they are reading. Privacy is a critical hallmark of any type of library system, whether for the blind or not.
We understand that the rights holders are concerned about piracy and other infringement of copyright. However, the language already in the treaty adequately protects these interests. Marrakesh would require that authorized entities be empowered to distribute materials only to beneficiary persons or agencies serving them. If a would-be authorized entity fails to observe this standard, rights holders are free to exercise their right to bring legal action to cease the infringement and to recover appropriate damages caused by the infringement. Rights holders are far better protected against infringement under Marrakesh as opposed to the normal distribution of their works to general consumers.
This is not only a theoretical point but one that has been proven over time. In the United States, we have lived under a system of Marrakesh-like exceptions for nearly twenty years through our Chafee Amendment. There is absolutely no proof that the substantial numbers of authorized entities that operate here in America have in any way increased piracy or have fostered a higher rate of copyright infringement.
President Obama, there are many imagined barriers related to blindness, but one of the real barriers is the woeful lack of information in an accessible format. Compared to the rest of the world, we have an advanced system of producing accessible-format copies, yet blind and print-disabled Americans have access to only a tiny percentage of the information available here and throughout the world. It is imperative that we open up the flow of information to the blind and print disabled and end the book famine! Send the Marrakesh Treaty to the Senate now!
I thank you for your considered attention to this matter. Please do not hesitate to contact us if we can be of any assistance to you on this or other matters. I would note that the Christmas holiday is very near and that moving this treaty would be a great gift to advance access to books by the blind. In that spirit, on behalf of the blind of this nation I would offer you and your family the warmest of holiday wishes and the hope that 2016 is a year of good health and tremendous joy for the Obama family.
Mark A. Riccobono, President
National Federation of the Blind