“Miracle in Marrakesh” – Now what?

glassesWe are closing in on the one year anniversary of the “Miracle in Marrakesh,” which took place on June 30, 2013. This was the day when we all were astonished that, at the diplomatic conference in Marrakesh, the World Intellectual Property Organization (WIPO) agreed on an international copyright exception for people with print disabilities.

Why such a surprise?

It is the first time that WIPO has ever placed a limitation on copyright. From its inception, WIPO, a United Nation entity concerned with international intellectual property law, has focused on maximizing copyright so the treaty with a long name—the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled—is significant. In addition, days before the diplomatic conference, it seemed unlikely that consensus would be made, due to sharp opposition from corporate entities like General Electric, Caterpillar and Exxon. See District Dispatch for more.

Here is the good news. Librarians can act.

This exception asks member nations of WIPO—U.S. is one of the 187 members—to implement an exception in their national laws stating that making accessible copies for people who need them is not an infringement of copyright. The treaty also allows for the cross-border sharing of accessible copies. Our visually-impaired citizens for whom English is a second language can import accessible copies in their native language from other nations, and vice versa.

Now, almost a year later—even though the treaty was signed by nearly 70 countries thus far (including Togo!)—there is another obstacle to overcome. The treaty does not go into force until 20 countries have submitted ratification or accession documents to WIPO, basically implementing the treaty provisions in their respective national laws.

Well, India has ratified it. Only 19 to go.

In the United States, international treaties are ratified by the Senate. Because the new treaty is much like the “Chafee Amendment,” one could argue that no changes to U.S. copyright law would be necessary and so voting in support of the treaty is a straightforward matter.

So what’s the point of all this work when nothing substantive is ever going to happen? Have we just been spinning our wheels?

Here is the bad news. This session of Congress is already pretty much in the bag and Congress has a small amount of time to get anything done. After Labor Day, they will be campaigning in their home states. In addition, the Senate is not keen on ratifying international treaties. They did not ratify the United Nations Convention on the Rights of Persons with Disabilities (even though it did not require any changes to U.S. law). In fact, the Senate has thirty-four treaties dating back to the 1940s that they have never ratified (and probably never will). Moreover, many Senators in this Congress have little patience with international bodies telling them what to do, arguing that U.S. sovereignty must be preserved. Plus they aren’t high on anything that can be perceived as “an entitlement.” Thus, Senate ratification seems unlikely in the short term and perhaps in the long term if the Senate continues to reject international treaties no matter how good the cause.

One might ask, “So what’s the point of all this work when nothing substantive is ever going to happen?” Have we just been spinning our wheels?

Here is the good news. Librarians can act. We can fully accept that making accessible copies for people with disabilities is not an infringement of copyright. This had been affirmed by the Congress (in the House Report for the Copyright Act of 1976), by the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc., and most recently in the Second Circuit Court of Appeals in Authors Guild v. HathiTrust. This is true under U.S. law no matter what a treaty might say. Let’s no longer be shy about exercising fair use for our library users with disabilities.

But what about the cross-border sharing of accessible copies? Let’s be ready. The International Federation of Libraries and Associations and Institutions (IFLA) is playing a leading role in planning for cross-border sharing of accessible copies. IFLA’s Library Services to People with Special Needs Section is having a satellite meeting following the IFLA Conference, August 22-23 entitled: eBooks for Everyone: An Opportunity for More Inclusive Libraries with a jammed packed agenda including best practices for sharing content, ebook accessibility solutions, and the implications of the Marrakesh Treaty. Of course, most of us cannot go to an international conference, so we must reach out to those leaders in the accessibility movement, find out what is going on, ask what we can do.

Let’s be ready to provide access to information to people with disabilities around the world.

Sometimes the best thing to do is just move forward.

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy (OITP). Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

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