On June 27, 2013, a Diplomatic Conference of the World Intellectual Property Organization (WIPO) held in Marrakesh, Morocco adopted the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.”¹ The Treaty is intended to promote the making and distribution of copies of books and other published materials in formats accessible to people with print disabilities. The Treaty would achieve this objective by obligating signatory countries (referred to as Contracting Parties) to adopt exceptions in their copyright laws that permit the making of copies in accessible formats as well as the distribution of those copies both domestically and internationally. This memorandum explains the Treaty’s provisions. The memorandum concludes that Title 17 of the United States Code complies with the Treaty’s requirements, and thus that the United States could sign and ratify the Treaty without making any changes to domestic law.

I. Overview

The copyright law in many countries presents a barrier to the making and distribution of copies of works in formats accessible to the print disabled. The making of a copy in an accessible format such as braille, without the authorization of the rights-holder, could constitute an infringement of the reproduction right. The unauthorized distribution of the accessible format copies could constitute an infringement of the distribution or making available to the public right. Similarly, the export or import of accessible format copies could trigger infringement liability. For this reason, over 50 (primarily developed) countries have adopted exceptions that allow the making and distribution of accessible format copies. However, over 130 WIPO countries, in which the majority of print disabled people live, do not have copyright exceptions relating to the print disabled. Moreover, the existing exceptions do not always explicitly permit the import or export of accessible format copies. Because of the high cost of producing accessible format copies and the relatively low demand for many individual titles, the ability to share accessible format copies across borders would benefit the print disabled in both developed and developing countries.

The Marrakesh Treaty addresses these problems by requiring Contracting Parties to adopt copyright exceptions that allow, under certain conditions:

1. the making of accessible format copies;
2. the domestic distribution of accessible format copies;
3. the export of accessible format copies; and
4. the import of accessible format copies.

The Treaty does not dictate how these goals are to be achieved; rather, it provides Contracting Parties with great flexibility concerning the implementation of their obligations. As Article 10(3) provides, “Contracting Parties may fulfill their rights and obligations under this treaty through limitations or exceptions specifically for the benefit of beneficiary persons, other limitations or exceptions, or a combination thereof….” Article 4(2) merely sets forth one way a Contracting Party may meet its obligation under Article 4(1) to permit the making and distribution of accessible format copies domestically. Likewise, Article 5(2) sets forth one way a Contracting Party may meet its obligation under Article 5(1) to permit the cross-border exchange of accessible format copies. The Treaty should be understood as creating minimum standards for exceptions, with a ceiling presented by existing obligations under the Berne Three-Step Test.²

Many aspects of the Treaty (e.g., the focus on actions by “authorized entities”) are similar to the specific exception for the print disabled in the U.S. Copyright Act, 17 U.S.C. S 121, also known as the Chafee Amendment. This similarity is no accident; significant elements of the Treaty are based on proposals originally submitted by the U.S. delegation.

The Treaty represents a significant development in international copyright law because it is the first treaty devoted exclusively or primarily to creating international minimum standards for copyright exceptions. At the same time, it should be remembered that the Berne Convention itself contains mandatory exceptions for quotations, illustration in teaching, and news reporting.

51 countries signed the Treaty on June 28, 2013. The Treaty does not take effect until 20 countries ratify it, and then it is binding on the countries that have ratified it. (Under international law, signing a Treaty indicates a country’s support for the Treaty, but is a lesser step than ratification.)

II. The Treaty’s Provisions

A. Definitions

The Treaty sets forth definitions in Articles 2 and 3 that articulate the scope of the Treaty. The most basic term is “beneficiary person” – the type of person the Treaty is intended to benefit. Article 3 defines a beneficiary person as a person who is: a) blind; b) “has a visual impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works;” or c) “is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading.” Thus, the scope of beneficiary person is significantly broader than blind people or even people with visual impairments. Footnote 3 further explains that the phrase “visual impairment or disability … which cannot be improved” in Article 3(b) does not require “the use of all possible medical diagnostic procedures and treatments.” Thus, for example, any disabling visual impairment that cannot be improved by the use of corrective lenses should be understood to qualify.

The Treaty defines the type of works to which it applies. For purposes of the Treaty, “works” means published literary and artistic works in the form of text, notation and/or illustrations, regardless of media.³ Footnote 1 adds that this definition includes such works in audio form, such as audiobooks. Significantly, audiovisual works such as films do not fall within the definition of works, although textual works embedded in audiovisual works (such as educational multimedia DVDs) would appear to fall within the definition.

The Treaty then defines the formats into which these works can be converted. “Accessible format copy” means a copy of a work in a form “which gives a beneficiary person access to the work, including to permit the person to have access as feasibly and comfortably as a person without visual impairment or other print disability.”⁴ A second sentence adds: “[t]he accessible format copy is used exclusively by beneficiary persons and it must respect the integrity of the original work, taking due consideration of the changes needed to make the work accessible….” The wording of the Marrakesh Treaty successfully avoids ambiguity that an accessible format copy is a format usable only by a print disabled person; “the accessible format copy is used exclusively by beneficiary persons” clearly refers to who is actually using the copy, not who is capable of using it.⁵ In this respect, the second sentence of Article 2(b) is not part of the definition of an accessible format copy, but rather a limitation on the uses of such a copy that are permitted under the Treaty. That is, the Treaty allows a Contracting Party to limit permissible distributions only to beneficiary persons or to prohibit editing or abridgment in ways beyond what the process of creating the accessible format copy requires.

Finally, the Treaty defines the organization that will be making and distributing the accessible format copies – the “authorized entity.” An authorized entity is “an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis.”⁶ Footnote 2 elaborates that the phrase “entities recognized by the government” may include entities that receive financial support from the government for the purpose or providing services to beneficiary persons. Furthermore, Article 2(c) provides that the term authorized entity “also includes a government institution or a non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations,” even if the organization is not specifically authorized or recognized by the government to do so. Thus, for example, both a specialized agency providing services to the blind and a general-service library with an institutional program to promote accessibility would constitute authorized entities.⁷

Article 2(c) then specifies that an authorized entity “establishes and follows its own practices” to establish that the people it is serving are beneficiary persons; to limit its distribution of accessible format copies to beneficiary persons or authorized entities; to discourage the reproduction and distribution of unauthorized copies; and to maintain due care in, and records of, its handling of copies of works. The provision concerning the establishment of practices appears not to be an element of the definition of “authorized entity.” Its purpose and effect are somewhat unclear – although the uncertainty is of little practical consequence. The provision could function as a descriptive statement: authorized entities generally establish and follow these types of practices. It could function as a normative statement: an authorized entity should establish and follow these types of practices. Or it could function as a permissive limitation: a Contracting Party may elect to provide the Treaty’s exceptions only to authorized entities that established and follow practices relating to Article 2(c)(i)-(iv).⁸ In any case, and importantly, the authorized entity establishes its ownpractices; the Treaty does not contemplate rules being established for it by the government.

B. Substantive Obligations

The substantive core of the Treaty is Articles 4 through 7.

1. Article 4 – Domestic Activities

   Article 4(1) requires Contracting Parties to provide in their national law an exception to the right of reproduction, distribution, and making available to the public “to facilitate the availability of works in accessible format copies for beneficiary persons.” Contracting Parties have significant flexibility in how they meet this obligation. Article 4(2) sets forth one way a Contracting Party can comply with Article 4(1), but Article 4(3) provides that Contracting Parties “may fulfill Article 4(1) by providing other limitations or exceptions in its national copyright law….”

   1. Article 4(2)

      The Article 4(2) method of compliance has two subparts. First, consistent with Article 4(2)(a), an authorized entity would be permitted to make an accessible format copy, or obtain an accessible format copy from another authorized entity, and supply the copy to a beneficiary person by any means, including by non-commercial lending or electronic communication. Four conditions would apply to this activity: (i) the authorized entity that is the source of the copy had lawful access to the work; (ii) the work is converted to an accessible format copy, which includes any means needed to navigate information in the copy, but does not introduce changes other than those needed to make the work accessible; (iii) the accessible format copy is supplied exclusively to be used by beneficiary persons; and (iv) the activity is undertaken on a non-profit basis. Note that there is significant overlap between condition (ii) and the second sentence of Article 2(b), and between condition (iii) and Article 2(c)(i) and (ii), buttressing the argument that the second sentence of Article 2(b) and the Article 2(c)(i)-(iv) should not be considered elements of the definitions of “accessible format copy” and “authorized entity.”

      Second, consistent with Article 4(2)(b), the beneficiary person or someone acting on his or her behalf may make an accessible format copy for the use of the beneficiary person.

   2. Other Flexibilities

      As noted above, Article 4(3) provides that a Contracting Party may fulfill its obligations under Article 4(1) by providing other exceptions and limitations, rather than pursuant to Article 4(2). These other exceptions must be consistent with Articles 10 and 11, which are discussed below.

      Article 4(4) provides that a Contracting Party may confine exceptions under Article 4 to works “which, in the particular accessible format, cannot be obtained commercially under reasonable terms for beneficiary persons in that market.” Several aspects of this provision are noteworthy. First, a commercial availability requirement is permissive, not mandatory. That is, a Contracting Party has the freedom to decide whether to permit the making and distribution of accessible format copies for domestic use to situations in which an accessible format copy is not already commercially available; however, the Contracting Party is not required to do so. Second, a commercial availability standard could be applied in domestic law only on a format-by-format basis, not across the board: if a beneficiary person seeks an accessible copy in a specific format, the fact that a copy is available in a different accessible format is irrelevant. Thus, if an appropriate (and appropriately priced) electronic text of a work were available, a Contracting Party that opts for this restriction on the exception on accessibility could still be required to permit reproduction and distribution in braille format. And if a Contracting Party adopted a commercial availability requirement broader than Article 4(4) describes, such action would be inconsistent with the Contracting Party’s obligation under Article 4(1). Third, the accessible format copy must available under terms that are reasonable for beneficiary persons in that market. Thus, in a developing country, the accessible format copy would have to be available at a price that is reasonable for a beneficiary person in that country.

      Article 4(5) provides that “[i]t shall be a matter for national law to determine whether limitations or exceptions under this Article are subject to remuneration.” This permissive provision allows a Contracting Party to condition an exception on the payment of a royalty to the rights-holder. In other words, a Contracting Party could adopt a statutory license rather than an absolute exception. However, the language of Article 4(4) suggests that the amount of remuneration provided by such a license would necessarily have to be appropriate to local market conditions.

2. Article 5 – Export

   Article 5(1) provides that a Contracting Party must permit an authorized entity to distribute an accessible format copy made under an exception to a beneficiary person or an authorized entity in another Contracting Party. In other words, the domestic copyright law of a Contracting Party must allow an authorized entity to export an accessible format copy to a beneficiary person or an authorized entity in another Contracting Party. As with Article 4, Article 5 provides Contracting Parties with flexibility on how to implement this obligation.⁹

   Also as in Article 4, Article 5 sets forth one approach for a Contracting Party to fulfill its Article 5(1) obligation. Under Article 5(2), a Contracting Party may adopt an exception in its national copyright law that permits an authorized entity to distribute an accessible format copy to an authorized entity or a beneficiary person in another Contracting Party, provided that prior to the distribution “the originating authorized entity did not know or have reasonable grounds to know that the accessible format copy would be used for other than beneficiary persons.” Footnote 7 adds that it is understood that when an authorized entity distributes an accessible format copy directly to a beneficiary person in another Contracting Party, “it may be appropriate for an authorized entity to apply further measures to confirm that the person it is serving is a beneficiary person and to follow its own practices as described in Article 2(c).” As worded, Footnote 7 indicates that it would be optional for authorized entities to decide whether “to apply further measures,” in addition to those it employs in the domestic context, to confirm the beneficiary status of a person it is serving in another country. Clearly, therefore, an authorized entity’s decision not to apply further measures should not constitute reasonable grounds for it to know that the accessible format copies would be used by non-beneficiaries.¹⁰

   During the Treaty negotiations, some delegations proposed inclusion of a provision in Article 5 concerning commercial availability. This provision ultimately was not included.

3. Article 6 – Import

   Article 6 contains a provision that is the matching bookend to Article 5. Just as Article 5 obligates Contracting Parties to permit authorized entities to export accessible format copies to authorized entities or beneficiary persons in other Contracting Parties, Article 6 obligates Contracting Parties to allow authorized entities or beneficiary persons to import accessible format copies from other Contracting Parties. Article 6 stipulates that this importation obligation applies only to the extent that the national law of a Contracting Party would permit an authorized entity or a beneficiary person to make an accessible format copy. Accordingly, if a Contracting Party’s national law permitted authorized entities, but not beneficiary persons, to make accessible format copies, under Article 6 that Contracting Party would only be required to permit authorized entities to import accessible format copies.

   Footnote 10 states that “[i]t is understood that the Contracting Parties have the same flexibilities set out in Article 4 when implementing their obligations under Article 6.” This means that a Contracting Party has the discretion to impose on imports a commercial availability requirement as in Article 4(4) or a remuneration requirement as in Article 4(5).

4. Article 7 – Circumvention

   Article 7 provides that when a Contracting Party prohibits the circumvention of technological protection measures in its general copyright legislation, it “shall take appropriate measures, as necessary, to ensure that … this legal protection does not prevent beneficiary persons from enjoying the limitations and exceptions provided for in this Treaty.” Thus, the Contracting Party must adopt a mechanism such as an exception to the circumvention prohibition to permit an authorized entity to make an accessible format copy. Other mechanisms — for example, requiring the rights-holder to provide the authorized entity with a key to open the digital lock — would also appear to satisfy this Article. Footnote 11 observes that an authorized entity might apply a technological measure to an accessible format copy, perhaps to restrict its distribution beyond the circle beneficiary persons, but nothing in Article 7 requires this practice.

C. Implementation

Articles 10 and 11 articulate principles concerning implementation. Article 10 underscores the flexibilities Contracting Parties have in how they implement the Treaty. Article 11, on the other hand, stresses that this flexibility is limited by existing treaty obligations, particularly the Berne Three-Step Test.

Article 10(2) states that “[n]othing shall prevent Contracting Parties from determining the appropriate method of implementing the provisions of this Treaty within their own legal system and practice.” Article 10(3) provides that “Contracting Parties may fulfill their rights and obligations under this Treaty through limitations or exceptions specifically for the benefit of beneficiary persons, other limitations or exceptions, or a combination thereof, within their national legal system and practice.” Article 10(3) adds that these exceptions or limitations “may include judicial, administrative, or regulatory determinations for the benefit of beneficiary persons as to fair practices, dealings or uses to meet their needs….” This reference to “fair practices, dealings or uses” was discussed extensively before the Diplomatic Conference in response to concerns raised by rights-holders in the United States. However, after the conclusion of the Diplomatic Conference and the adoption of the Treaty, these U.S. rights-holders did not voice any opposition to this language.

Article 11 provides that in adopting measures necessary to ensure the application of the Treaty, a Contracting Party may exercise its rights and must comply with its obligations under the Berne Convention, TRIPS, and the WIPO Copyright Treaty (WCT). This in essence repeats Article 1, which provides that “[n]othing in this Treaty shall derogate from any obligations that Contracting Parties have to each other under any other treaties, nor shall it prejudice any rights that a Contracting Party has under any other treaties.” Article 11 continues, perhaps unnecessarily, by repeating four times over the Three-Step Test (TST) that is a part of all modern international copyright agreements, reciting the different formulations of the TST in the Berne Convention, TRIPS, and Articles 10(1) and 10(2) of the WCT.

This fixation with the TST was a recurring theme throughout the Treaty negotiations. The United States originally advocated an instrument that would operate as an official interpretation of the TST. Accordingly, an exception that followed the contours of the instrument would be understood to comply with the TST. As the instrument evolved from a soft-law interpretation of the TST into a treaty, the European Union along with other delegations insisted that any implementation would independently have to meet the requirements of the TST. In other words, there would be no presumption that an exception for the print disabled that followed the Treaty’s provisions was a certain special case that did not conflict with a normal exploitation of the work and did not unreasonably prejudice the legitimate interests of the rights-holder. The EU’s emphasis on the TST led delegations from the developing world to suspect that the developed countries were trying to neuter the Treaty and perhaps even weaken the limitations on the TST included in previous treaties.¹¹ The EU, in turn, feared that the developing countries were trying to use the Treaty to undermine the TST.

This distrust concerning the TST became particularly pronounced in the context of the so-called “Berne-Gap.” Some of the developing countries within WIPO have not yet joined the Berne Convention, and thus are not bound to the TST with respect to the reproduction right. Other countries have not yet joined TRIPS and the WCT, and as such are not bound to the TST with regard to the rights other than reproduction. To ensure that these countries did not somehow misuse the Treaty in cross-border situations, Article 5(4)(a) provides that when accessible format copies are received by an authorized entity in a Contracting Party that has no obligations under the TST in the Berne Convention, the Contracting Party will ensure that “the accessible format copies are only reproduced, distributed or made available for the benefit of beneficiary persons in that Contracting Party’s jurisdiction.” In other words, the authorized entity may not re-export the copy to another country.

Furthermore, Article 5(4)(b) provides that if a Contracting Party is not a member of the WCT, it can permit an authorized entity to export an accessible format copy only if it limits exceptions implementing the Treaty to “certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder,” i.e., the TST. Footnote 8 makes clear that this provision does not impose a TST obligation beyond the scope of the Treaty’s provisions concerning exceptions for certain beneficiary persons. Further, Footnote 9 makes clear that this provision does not create an obligation for a Contracting Party to join the WCT, nor does it prejudice any rights or limitations contained in the WCT.

The Treaty contains numerous other references to the need to adhere to existing treaty obligations in general and the TST in particular. The Preamble reaffirms “the obligations of Contracting Parties under the existing international treaties on the protection of copyright and the importance and flexibility of the three-step test….” Footnote 4 states that it is understood that Article 4(3) (concerning other means of implementing the Article 4(1) obligation) “neither reduces nor extends the scope of applicability of limitations and exceptions permitted under the Berne Convention, as regards the right of translation, with respect to persons with visual impairments or other print disabilities.” Footnote 5 states that it is understood that a commercial availability requirement as referenced in Article 4(4) “does not prejudge whether or not a limitation or exception under this Article is consistent with the three-step test.” Footnote 6 with respect to Article 5(1) states that it is understood that “nothing in this Treaty reduces or extends the scope of exclusive rights under any other treaty.” Article 10(3) follows the reference to “fair practices, dealings or uses” with “consistent with the Contracting Parties’ rights and obligations under the Berne Convention, [and] other international treaties….”

Finally, Article 12(1) states that Contracting Parties may adopt additional copyright exceptions for the benefit of beneficiary persons “in conformity with that Contracting Party’s international rights and obligations, and in the case of least-developed country taking into account its special needs and its particular international rights and obligations and flexibilities thereof.” This last clause is significant in that it affirmatively indicates that the application of the TST to legislation in developing countries should be inflected by a consideration of local conditions.

D. Other Provisions

Article 8 provides that in the implementation of the Treaty, Contracting Parties “shall endeavor to protect the privacy of beneficiary persons on an equal basis with others.” This should be viewed as a floor and not a ceiling. Even in countries with few privacy protections, authorized entities should be encouraged to protect the privacy of the reading habits of beneficiary persons.

Article 9 contains provisions designed to facilitate cross-border exchanges. Article 9(1) directs Contracting Parties to “foster the cross-border exchange of accessible format copies by encouraging the voluntary sharing of information to assist authorized entities in identifying one another.” The WIPO International Bureau is to establish “an information access point for this purpose.” Under Article 9(2), Contracting Parties “undertake to assist their authorized entities engaged in activities under Article 5 to make information available regarding their practices pursuant to Article 2(c), both through the sharing of information among authorized entities, and through making available information on their policies and practices … to interested parties and members of the public as appropriate.” Contracting Parties agree only to assist their authorized entities in making information available concerning their practices; Contracting Parties are not obligated to require authorized entities to disclose this information. This assistance presumably could take the form of the Contracting Party hosting a website containing this information or providing additional funding to authorized entities.

During the negotiation of the Treaty, publishers sought stronger language concerning the disclosure of information relating to cross-border exchanges to ensure the “accountability” of authorized entities. They also wanted the International Bureau to maintain a registry of authorized entities. Authorized entities were concerned that accountability language could lead to onerous reporting requirements and “fishing expeditions” that could result in publisher lawsuits. Further, they feared that the benefits of the Treaty might be limited to authorized entities included in the registry. The language ultimately adopted in Article 9 does not mandate reporting requirements nor a WIPO registry. Instead, authorized entities simply are to be assisted in finding one another and making available their practices for restricting distribution of accessible format copies to beneficiary persons. The benign nature of Article 9 is underscored by Footnote 12, which states that “[i]t is understood that Article 9 does not imply mandatory registration for authorized entities nor does it constitute a precondition for authorized entities to engage in activities recognized under this Treaty; but it provides for a possibility for sharing information to facilitate the cross-border exchange of accessible format copies.”

Footnote 13 states that it is understood that the limitations provided for under the Treaty apply to “related rights” just as they apply to copyrights, to the extent necessary to make the accessible format copy and distribute it to beneficiary persons. In some countries, works such as sound recordings are protected not by copyright but by related rights. Footnote 13 makes clear that in Contracting Parties with related right protection for sound recordings such as audio books, the Treaty would require the adoption of exceptions to those related rights, as well as to copyright itself.

The Treaty also includes several saving clauses limiting the impact of the Treaty on other matters. Article 5(4)(c) states that nothing in Article 5 “affects the determination of what constitutes an act of distribution or an act of making available to the public.” Article 5(5) provides that “[n]othing in this Treaty shall be used to address the issue of exhaustion of rights.”

The significance of Article 12(1) is discussed above, but it should be noted here, in conclusion, that Article 12(2) confirms the important point that the Treaty, while mandating certain exceptions in favor of persons with disabilities, does not foreclose the adoption of others. Specifically, Article 12(2) provides that this Treaty is “without prejudice to other limitations and exceptions for persons with disabilities provided by national law.”

III. U.S. Compliance with the Treaty

U.S. law currently complies with the Treaty, and the United States could ratify the Treaty without amending the Title 17. The relevant exceptions for the print disabled appear in the Chafee Amendment, 17 U.S.C. S 121; the fair use doctrine, 17 U.S.C. S 107; and the anticircumvention provisions of the Digital Millennium Copyright Act, 17 U.S.C. S 1201. These provisions must be mapped against the obligations set forth in Articles 4(1), 5(1), 6, and 7 of the Treaty.

As discussed above, Article 4(1) obligates a Contracting Party to provide an exception to the right of reproduction and distribution to facilitate the domestic availability of works in accessible format copies for beneficiary persons. The Chafee Amendment permits authorized entities “to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work … in specialized formats exclusively for use by blind or other persons with disabilities.”¹² The Chafee Amendment appears narrower than Article 4(1) in at least one respect:¹³ Chafee excludes dramatic literary works (e.g., the script of a play), unlike the Treaty. In fact, under Section 107, a court likely would consider the making of an accessible format copy of a play as a fair use.¹⁴

The Chafee Amendment also does not go as far as Article 4(2), which mandates an exception directly for beneficiary persons, as well as one for authorized entities that serve them. However, it seems clear that the fair use doctrine would apply in the situation where a beneficiary person in the United States, or his or her caregiver, wished to create an accessible copy of a text for personal use. Moreover, under the Treaty, it is literally the case that a Contracting Party need not comply with Article 4(2); Article 4(2) simply outlines one way of complying with the Article 4(1) obligation.

Article 5(1) obligates a Contracting Party to permit an authorized entity to export an accessible format copy to an authorized entity or a beneficiary person in another Contracting Party. The U.S. Copyright Act only prohibits the export of infringing copies. 17 U.S.C. S 602(a)(2). Because the accessible format copies being exported by the authorized entity would be made pursuant to the Chafee amendment or fair use, they would not infringe and thus section 602(a)(2) would not block their export. Moreover, the export right is a species of the distribution right, and therefore the Chafee Amendment exception to the distribution right would also apply to the export right.

Importation, addressed by Article 6, is treated under 17 U.S.C. S 602(a) as another form of distribution in U.S. law. The Chafee Amendment’s exception to the distribution right, accordingly, would provide an authorized entity with an exception to the importation right. To the extent the Chafee Amendment did not apply (for example, if the work at issue was a play), fair use or the first sale doctrine, as interpreted by Kirtsaeng v. John Wiley & Sons, Inc., would permit the importation by an authorized entity.¹⁵ Additionally, fair use, first sale, and the personal use exception to the importation right, 17 U.S.C. S 602(a)(3)(B), would permit the direct importation by a beneficiary person. In short, the U.S. Copyright Act easily meets the obligations of Article 6.

Article 7 provides that when a Contracting Party prohibits the circumvention of technological protection measures, it must take appropriate measures to ensure that this legal protection does not prevent beneficiary persons from enjoying the exceptions provided for in the Treaty. The Digital Millennium Copyright Act, 17 U.S.C. S 1201, prohibits the circumvention of technological protection measures, thereby triggering this obligation. Under section 1201(a)(1)(C), the Librarian of Congress may provide a three year exemption to the section 1201(a)(1)(A) prohibition on the circumvention of a technological measure that effectively controls access to a work. In four consecutive rulemakings, the Librarian has granted exemptions to the print disabled for the circumvention of software that disabled the text to speech function on screen readers. The most recent exemption, granted in 2012, meets the requirements of Article 7.¹⁶

Even though the United States could ratify the Treaty without amending Title 17, the Treaty still has the potential to provide substantial benefits to the print disabled in the United States. This is because the Treaty should result in more Contracting Parties adopting exceptions permitting authorized entities to make accessible format copies and to export them to other Contracting Parties, including the United States. This will be particularly helpful to the print disabled in the United States that are interested in reading foreign language books.

August 6, 2013

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1 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, June 28, 2013 [hereinafter Marrakesh Treaty], available at http://www.wipo.int/edocs/mdocs/diplconf/en/vip_dc/vip_dc_8_rev.pdf.

2 The Treaty’s relationship with the Three-Step Test is discussed below in detail in Part II.C.

3 Marrakesh Treaty, supra note 1, art. 2(a).

4 Id. art. 2(b).

5 Some rights-holders in Authors Guild v. HathiTrust, 902 F. Supp. 2d 445 (S.D.N.Y. 2012), appeal docketed, No. 12-4547 (2d Cir. Nov. 14, 2012), have argued that specialized formats “exclusively for use” by blind people in the Chafee Amendment means specialized formats that are capable of being used only by blind people, e.g., braille. This misinterpretation of the Chafee Amendment would exclude many digital formats, which can be used both by blind and sighted people.

6 Marrakesh Treaty, supra note 1, art. 2(c).

7 Article 2(c), like Article 2(b) discussed above, clarifies the definition of “authorized entity” in the Chafee Amendment, thereby precluding the right-holders’ rejected argument in Authors Guild v. HathiTrust, supra note 5, that a general-service library cannot be an authorized entity.

8 Even if this provision were construed to be an element of the definition of authorized entity, that simply would mean that a Contracting Party is obligated to provide exceptions under the Treaty at least to authorized entities that establish and follow practices relating to Article 2(c)(i)-(iv). The Contracting Party could still decide to provide exceptions to authorized entities that do not establish such practices, because the Treaty provides a floor for national legislation, rather than a ceiling above it.

9 See Marrakesh Treaty, supra note 1, art. 5(3).

10 Further, the reference in Footnote 7 to practices “described” in Article 2 reinforces the position that these practices are not definitional.

11 For example, Footnote 9 of the WCT states that: “[i]t is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.”

12 17 U.S.C. S 121(a) (2011).

13 The definition of “accessible format copy” in the Treaty and “specialized formats” in the Chafee Amendment are substantially the same, although the Treaty’s definition is clearer. See Part II.A., supra. Because “other persons with disabilities” under the Chafee Amendment includes persons with reading disabilities that result from an organic dysfunction, some have tried to limit the applicability of Chafee by claiming that certain reading disabilities do not result from an organic dysfunction. To the extent these assertions are biologically correct with respect to the causation of these disabilities, fair use would permit the distribution of accessible format copies to people with these “non-organic” reading disabilities.

14 See Jonathan Band, The Impact of Substantial Compliance with Copyright Exceptions on Fair Use, 59 J. Copyright Soc’y U.S.A. 453, 461-62 (2012); Association of Research Libraries, Code of Best Practices in Fair Use for Academic and Research Libraries 21-22 (2012), available at http://www.arl.org/storage/documents/publications/code-of-best-practices-fair-use.pdf.

15 The Supreme Court in Kirtasaeng v. John Wiley & Sons, Inc., 131 S. Ct. 1351 (2013), ruled that the first sale doctrine permitted the unauthorized importation of noninfringing copies.

16 This exemption permits circumvention to gain access to: “Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies, (i) when a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or (ii) when such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.” Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 77 Fed. Reg. 65,260, 65,262 (Oct. 26, 2012) (to be codified at 37 C.F.R. pt. 201).

Editor’s Note: Reprinted with the permission of the author. Initial publication by the Library Copyright Alliance – August 6, 2013.