Marrakesh Treaty in Action

Patrons with print disabilities will soon have improved access to accessible materials as the United States ratifies a global initiative.

Patrons with print disabilities will soon have improved access to accessible materials as the United States ratifies a global initiative

 

According to the World Blind Union (WBU), more than 90 percent of the world’s published materials cannot be read by people who are blind or have a print disability. “We need to be able to reproduce published materials into accessible formats, such as Braille, large print, and audio editions, to address the book famine, however, current copyright rules within most countries prevents this,” WBU explains on its site.

The Marrakesh Treaty To Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, which goes into effect in the United States on May 9, offers an exception to domestic copyright law for eligible people with disabilities. This allows individuals and organizations to create and distribute accessible versions of books and other materials without first having to ask permission from publishers.

The treaty was adopted in Marrakesh, Morocco, on June 27, 2013, by several member-states of the World Intellectual Property Organization (WIPO), but worldwide ratification has taken years. The United States, for example, signed on as a contracting party in October 2013, but in order to ratify the treaty, Congress first had to evaluate the implications for existing U.S. laws. Also, the Senate is required to provide advice and consent prior to the United States joining any treaty.

In a culmination of these efforts, senators Chuck Grassley (R-IA), Bob Corker (R-TN), Dianne Feinstein (D-CA), Bob Menendez (D-NJ), Kamala Harris (D-CA), Orrin Hatch (R-UT), and Patrick Leahy (D-VT) last March introduced the bipartisan Marrakesh Treaty Implementation Act (MTIA) to Congress.

“That is what [MTIA] does—it revises the Copyright Act to meet the terms of the Marrakesh Treaty,” explains an FAQ recently posted by the U.S. Copyright Office. “This legislative process took five years partly because legislation in general tends to move slowly, and also because Congress consulted with various stakeholders, including those representing the blind communities, the publishing sector, and the library communities, on the proposed legislative language.”

Following passage in the House and passage by unanimous consent in the Senate, President Donald Trump signed MTIA into law last October 2018 and signed the treaty ratification papers in January. The papers were then deposited with WIPO, and the treaty was scheduled to go into effect here this month.

“Not only did the interests of the community come together to negotiate the language of the bill, but also it elicited support from both Republicans and Democrats,” Jim Neal, then president of the American Library Association (ALA), told LJ when MTIA was introduced. “The fact that we were sustaining that conversation over five years indicates the good will of the parties involved, but also recognizes the complexities of implementing such an important change.”

 

IMPACT ON COPYRIGHT

Brad Turner, VP and general manager of global literacy for international nonprofit Benetech, explains that “the treaty requires member nations to modify their national copyright law to allow for production of accessible materials for people with disabilities and establish rules for the exchange of accessible materials with other member nations.”

The U.S. Copyright Act has included exceptions for the creation of accessible materials for more than two decades through section 121 of the Copyright Act, also known as the “Chafee Amendment.” Passed in 1996, it gives “authorized entities” including academic libraries and institutions such as the Library of Congress’s National Library Service for the Blind and Physically Handicapped (NLS) the power to create and distribute accessible copies of books, magazines, and other materials.

MTIA has left the fundamental activities enabled by section 121 the same, while expanding, updating, and clarifying several parts of the exemption.

According to the Copyright Office, MTIA:

  • “Expands the types of works allowed to be copied from nondramatic literary works to all literary works, plus musical works fixed in the form of text or notation.”
  • “Changes the term ‘specialized formats,’ the definition of which was limited to specific technologies, to ‘accessible formats,’ which is defined more broadly as an ‘alternative manner or format’ that allows an eligible person to have access to a work that is equivalent to a person without a disability. The Senate Report accompanying the MTIA adds that ‘accessible formats’ includes related illustrations integrated with the text or notation.”
  • “Updates the beneficiaries of section 121, which were originally termed ‘blind or other persons with disabilities,’ to ‘eligible person,’ which is defined as someone who is either blind, has a ‘visual impairment or perceptual or reading disability’ rendering them unable to read printed works ‘to substantially the same degree as a person without an impairment or disability,’ or has a physical disability making them unable to hold or manipulate a book or focus or move their eyes to read. Additionally, the Senate Report states that a condition making one an ‘eligible person’ must be ‘determined by a competent authority possessing experience in making such determinations.’”

Turner clarified that patrons with varying disabilities can qualify: “Eligible persons include those who are blind, or have a visual impairment, perceptual or reading disability, or physical disability,” he says. Both the U.S. Copyright law and the Marrakesh Treaty include librarians in the group of “competent authorities” who can make determinations about a patron’s eligibility for these accessible materials.

Additionally, the treaty allows authorized entities—defined as nonprofits or government entities with a primary mission to serve eligible persons—to import and export accessible versions of books and other materials without copyright holder permission, reducing duplicative efforts and expediting distribution.

“By allowing for cross-border exchange of accessible-format works, countries can avoid duplication of resources in the creation of these formats,” Susan Gibbons, president of the Association of Research Libraries (ARL) and deputy provost for collections and scholarly communication at Yale University, said in an announcement when MTIA was signed into law in October. “Libraries, as authorized entities, have a vital role in facilitating cross-border exchanges. ARL members look forward to facilitating exchanges, not only across the United States–Canada border but globally.”

YEARS IN THE MAKING Former U.S. Representative to the United Nations Betty King signed the Marrakesh Treaty on October 2, 2013.
Photo by Emmanuel Berrod for WIPO

Although the NLS initially won’t be able to export materials owing to an unrelated provision limiting its activities to the United States, the treaty requires member nations to establish rules for the exchange of accessible materials with other member nations. The Copyright Office indicates that all “authorized entities, eligible persons, and agents of eligible persons may import works in accessible formats” including Braille, large print, digital audio formats, and digital text with text-to-speech features, such as EPUB.

Items covered in the treaty include books, periodicals, and text-based works, as well as sheet music. The treaty does not cover films or allow for any alteration of the contents of the text. The treaty uses the term accessible format copy, which allows for leeway in what type of format is used, typically either ebooks (most with screen-reading capabilities) and audiobooks.

The treaty stipulates that the accessible books delivered under its provisions are only to be used for disabled individuals and are not to be widely distributed. According to the Copyright Office, institutions engaged in import or export of accessible format copies are required to establish and adhere to practices that ensure that they are only serving eligible persons, that further reproduction and distribution of these works is discouraged, that authorized entities maintain records of reproduced works while respecting the privacy of eligible persons, and that authorized entities make the titles of accessible works publicly available along with information regarding its policies and overseas treaty partners.

 

INSTANT DIVIDENDS

Bookshare, an ebook library initiative of Benetech, presents a great example of how ratification of the treaty will immediately improve access to content for print-disabled readers. The nonprofit currently has a collection of more than 700,000 textbooks, popular fiction and nonfiction, children’s books, and other content in accessible formats in its online library. About 600,000 of these books are shared with members worldwide, owing to international distribution rights granted by publishers, Turner says. The content is currently available free to qualified students in the United States through an award from the Office of Special Education Programs, U.S. Department of Education, and other qualified individuals, while organizations pay a nominal fee to access materials.

Yet the 600,000 titles available now on Bookshare’s platform are shared via publisher permission, Turner says. The implementation of the Marrakesh Treaty will mean that an additional 100,000 Bookshare titles can now be shared with the other 53 countries that have ratified the treaty to date.

Turner says that the United States will also benefit from additional content. “Bookshare can import books from other Marrakesh-ratifying countries, including Australia, Canada, the UK, and EU countries after they ratify, and make them available to Bookshare members in the United States and other Marrakesh-ratifying countries,” he says.

The biggest impact will be felt in developing countries, most of which “have a limited number of books in accessible formats like Braille,” Turner says.

Since Marrakesh Treaty participating countries will be able to import books from countries with larger existing libraries, “free movement of accessible materials in dozens of different languages addresses the book famine—the lack of reading material—for eligible people in every Marrakesh Treaty–ratifying country.”

While Benetech does not pay for accessible content received directly from publishers, special orders, such as books needed by students for a course, do incur costs. “Benetech and other libraries can increase the size of the collection they offer at a negligible price by importing titles from other countries and making them available to their qualified library patrons,” Turner says.

Turner is hopeful that expanded digital materials collections available to people with disabilities will cause “ripple effects” of increasing supply and demand. “As the supply of accessible materials increases worldwide, additional countries will see the value and ratify the treaty,” Turner says. “Publishers, in turn, will offer more books in accessible formats in order to reach a larger user base. The increased number of consumers—especially in developing nations—will stimulate the demand for books and for low-cost electronic devices.”

 

IMPROVING ACCESS

Digital Talking Book pioneer and chief innovations officer for the DAISY Consortium George Kerscher suggests that libraries take this time to examine their own accessibility efforts and how many library systems—from the catalog to a library’s website—can make a library difficult to navigate for many patrons.

“For a person with a print disability such as blindness, low vision, or dyslexia, there are many barriers to a mainstream library,” Kerscher says.

“There is a huge unknown factor in the accessibility of the current systems being used by mainstream libraries,” he adds. “If the user interface to the catalog requires many steps that most people find difficult, it is a good bet that a person using [assistive technology] to access the system will find it doubly difficult. It should be easy to request a title and get it to their device for reading.”

Assistive technologies such as screen readers and read aloud functions, along with reading apps, enable library patrons to change font color, size, spacing, and background color. Kerscher notes that the EPUB 3 digital publishing standard was designed to be highly accessible, but that does not necessarily mean that publishers and reading app developers fully employ these features. Kerscher adds that the apps used in public libraries must be included in any efforts to test and evaluate reading apps for accessibility.

“There are many barriers that need to be broken down, and fortunately there is the growing will to include persons with disabilities in society,” Kerscher says. Initiatives such as Inclusive Publishing (www.inclusivepublishing.org) exist as knowledge-sharing spaces to provide information on accessible materials.

When acquiring new content and revamping their websites, Kerscher urges libraries to consider the accessibility of these features. “Buy born accessible [ebooks and digital] content, make your websites accessible, and make sure reading apps and catalogs are accessible.”

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