    [Senate Hearing 115-824]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 115-824

                                  TREATIES

    =======================================================================

                                    HEARING

                                   BEFORE THE

                         COMMITTEE ON FOREIGN RELATIONS
                              UNITED STATES SENATE

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 APRIL 18, 2018
                                  __________

           Printed for the use of the Committee on Foreign Relations

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                       Available via the World Wide Web:
                             http://www.govinfo.gov

                 U.S. GOVERNMENT PUBLISHING OFFICE
    40-580                 WASHINGTON : 2020

                     COMMITTEE ON FOREIGN RELATIONS

                    BOB CORKER, Tennessee, Chairman
    JAMES E. RISCH, Idaho                ROBERT MENENDEZ, New Jersey
    MARCO RUBIO, Florida                 BENJAMIN L. CARDIN, Maryland
    RON JOHNSON, Wisconsin               JEANNE SHAHEEN, New Hampshire
    JEFF FLAKE, Arizona                  CHRISTOPHER A. COONS, Delaware
    CORY GARDNER, Colorado               TOM UDALL, New Mexico
    TODD YOUNG, Indiana                  CHRISTOPHER MURPHY, Connecticut
    JOHN BARRASSO, Wyoming               TIM KAINE, Virginia
    JOHNNY ISAKSON, Georgia              EDWARD J. MARKEY, Massachusetts
    ROB PORTMAN, Ohio                    JEFF MERKLEY, Oregon
    RAND PAUL, Kentucky                  CORY A. BOOKER, New Jersey
                      Todd Womack, Staff Director
                Jessica Lewis, Democratic Staff Director
                        John Dutton, Chief Clerk

                                  (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page

    Corker, Hon. Bob, U.S. Senator From Tennessee....................     1

    Menendez, Hon. Robert, U.S. Senator From New Jersey..............     2

    Singh, Hon. Manisha, Assistant Secretary, Bureau of Economic and
      Business Affairs, United States Department of State,
      Washington, DC.................................................     4
        Prepared Statement...........................................     5

    Labarre, Scott, Legal Counsel, National Federation of the Blind,
      Baltimore, MD..................................................     9
        Prepared Statement...........................................    11

    Adler, Allan, Executive Vice President and General Counsel,
      Association of American Publishers, Washington, DC.............    14
        Prepared Statement...........................................    16

    Band, Jonathan, Counsel, Library Copyright Alliance, Washington,
      DC.............................................................    21
        Prepared Statement...........................................    23

                  Additional Material Submitted for the Record

    Letters of Support Submitted by Senator Bob Corker for Senate
      Consent to the Ratification of the Marrakesh Treaty and for
      Enactment of S. 2559...........................................    28

    Marrakesh Treaty To Facilitate Access to Published Works for
      Persons who are Blind, Visually Impaired, or Otherwise Print
      Disabled.......................................................    42

                                     (iii)

                                   TREATIES

                                  ----------

                         WEDNESDAY, APRIL 18, 2018

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10:35 a.m. in
    room SD-419, Dirksen Senate Office Building, Hon. Bob Corker,
    chairman of the committee, presiding.
        Present: Senators Corker [presiding], Risch, Gardner,
    Young, Menendez, Cardin, Shaheen, Murphy, Kaine, and Booker.

                 OPENING STATEMENT OF HON. BOB CORKER,
                      U.S. SENATOR FROM TENNESSEE

        The Chairman. The Foreign Relations Committee will come to
    order.
        We want to thank everyone for the hardship that many of you
    went through to be here from around the country and so many in
    the audience who care deeply about this issue, as we do on the
    committee.
        We are going to consider today, as you already know, the
    Marrakesh Treaty. The World Health Organization estimates that
    there are 36 million blind people in the world today, with an
    additional 217 million who suffer from moderate to severe
    vision impairment. The Marrakesh Treaty will significantly
    expand the ability of blind and visually impaired people around
    the world to have access to books and other materials that the
    rest of us are able to take for granted.
        The treaty itself is based in large part on a longstanding
    copyright exemption in U.S. law known as the Chafee Amendment.
    The Marrakesh Treaty closely follows the Chafee Amendment but
    will require a few changes to U.S. law. The Senate Foreign
    Relations Committee worked closely with the Judiciary Committee
    to develop the implementing legislation. There is broad support
    among the copyright stakeholders for Senate consent to the
    ratification of this treaty and for enactment of S. 2559, the
    corresponding implementing bill.
        I have a number of letters of support from these
    organizations that I would like to introduce into the record,
    without objection.
        [The information referred to above can be found at the end
    of this document.]
        The Chairman. And finally, I would like to recognize James
    Brown, who is in the audience today. James is the immediate
    past president and a current board member of the National
    Federation of the Blind of Tennessee. We welcome him and all of
    you who have come out of great interest for this treaty being
    enacted. We thank you for that.
        And now I will turn to my friend, Ranking Member Senator
    Menendez.

                  STATEMENT OF HON. ROBERT MENENDEZ,
                      U.S. SENATOR FROM NEW JERSEY

        Senator Menendez. Thank you, Mr. Chairman, and thank you
    for holding this important hearing.
        Let me welcome our distinguished panelists and all of our
    guests who have taken the time to come here today for this
    important hearing. The consideration of treaties is among the
    most important responsibilities of this committee, and I wish
    we could do it more often.
        I would like to welcome in particular one guest we have in
    the audience from the great State of New Jersey, Joe Ruffalo,
    Jr. He is a veteran who has served our country in Vietnam,
    earned a Bronze Star. He has been a businessman and a community
    leader in the Lions Club, the Knights of Columbus, and the Boy
    Scouts of America. Though retinitis pigmentosa has claimed his
    vision, Joe has done critical work to assure the full
    integration of people with disabilities into our society. He
    served as president of the special education parent and
    professional organization for 13 years, past chairman of the
    board of trustees of the New Jersey Commission for the Blind
    and Visually Impaired, and he currently serves as president of
    the New Jersey Federation for the Blind, a position he has held
    since 1993. So, Joe, thank you very much for being here, for
    your advocacy.
        Also he has been joined by another New Jerseyan, Linda
    Melendez. That is ``L'' not an ``N'' so we could be cousins
    maybe.
        [Laughter.]
        Senator Menendez. We are one ``N'' apart. She has joined
    you and I welcome her here today as well.
        I have long been a proud champion of the disabilities
    community because I believe that everyone should have the
    opportunity to achieve their dreams and fulfill their God-given
    potential. The pursuit of accessibility and reasonable
    accommodation for all embodies the greatest and best of
    American ideals, principles of equality and the protection of
    minorities, as well as the inalienable right to pursue
    happiness.
        I was a strong supporter on the Convention for the Rights
    of Persons with Disabilities, which promoted the fairness and
    equality that people with disabilities enjoy here to countries
    around the world. As chairman of this committee at the time, I
    held two hearings in late 2013 to consider the convention and
    was proud to support the successful passage of the convention
    from the committee in 2014. I was disappointed that the full
    Senate did not take up the convention, but we have continued to
    work to advance the rights of those in the disabilities
    community.
        Today we consider a narrow but still critically important
    treaty intended to break down barriers that have prevented
    those with disabilities from accessing and learning from books
    and published materials. Book famine, or lack of access to
    accessible texts, disproportionately impacts those with reading
    and visual disabilities. The National Federation for the Blind
    estimates that only 5 percent of published books can be found
    in an accessible format in the developed world. That percentage
    is even smaller in the world's poorest countries.
        Modern technology can be used to convert books into
    accessible format, braille, digital braille, or a navigable
    audio book. But restrictive national copyright laws have
    hampered these efforts, and even once produced, incompatible
    national copyright laws make it difficult for countries to
    share their formatted works.
        In 2013, representatives of 51 countries met in Marrakesh
    to address this issue, and all eventually signed on to the
    treaty whose primary objective is to ensure that persons with
    visual impairments are able to exercise their right to freedom
    of expression, education, and the opportunity to conduct
    research.
        The treaty requires signatories to create an exception in
    domestic copyright law that would allow authorized entities to
    create published works in a format accessible to visually
    impaired persons, allow for the import and export of these
    works so long as national law allows and the recipients are the
    intended beneficiaries, and ensure that all exceptions and
    limitations to copyright laws do not prejudice the legitimate
    interests of the work's right holders.
        The United States signed the treaty on October 3rd of 2013.
    It entered into force in 2016, and it is about time that we
    ratify the treaty.
        Let me just close by giving one example. This treaty would
    bring concrete benefits to visually impaired Americans like
    Veronica Gaspa, a young constituent of mine from South Orange,
    New Jersey. She is the president of the New Jersey Association
    of Blind Students and a junior at Seton Hall University who is
    studying English and journalism. When Veronica was in high
    school, she took Spanish but could not get the Spanish
    materials she needed to follow up with her fellow students. And
    by the time an accessible copy was made, the school year would
    be over.
        Veronica was always interested in other cultures, but she
    and many other visually impaired students she networks with
    stay away from language classes in college out of fear they
    will not be able to keep up or get materials that would help
    them learn. She is friends with blind people around the world
    but cannot recommend books to them because there likely is not
    an accessible copy in their country. Ratifying this treaty
    would have a direct impact on the lives of Veronica and her
    friends.
        For over 3 years, my staff has worked with the staff of
    Senator Corker, as well as the staff of the Judiciary
    Committee, in a bipartisan fashion to advance this treaty and
    its implementing legislation, which I understand has the strong
    support of each of the stakeholder groups represented here
    today, the visually impaired community, libraries, and the
    publishers association.
        I am proud to serve as an original cosponsor of the
    implementing legislation, and I look forward to hearing from
    our panelists and, hopefully, Mr. Chairman, adopting the
    treaty, helping you pass it, and hopefully getting passage on
    the floor.
        The Chairman. Thank you so much.
        We will now turn to our first panel. Our first witness is
    Manisha Singh, Assistant Secretary of State for Economic and
    Business Affairs. In this role, she is responsible for
    advancing American prosperity, entrepreneurship, and innovation
    worldwide. I would note that she also served as Deputy Chief
    Counsel to this committee. We thank her for her service here
    and with the administration today and for being here.
        And with that, if you could summarize your comments in
    about 5 minutes, we would appreciate it.

    STATEMENT OF HON. MANISHA SINGH, ASSISTANT SECRETARY, BUREAU OF
      ECONOMIC AND BUSINESS AFFAIRS, UNITED STATES DEPARTMENT OF
                         STATE, WASHINGTON, DC

        Ms. Singh. Thank you, sir.
        Chairman Corker, Ranking Member Menendez, and members of
    the committee, thank you for the opportunity to appear before
    you today to testify in support of the Marrakesh Treaty on
    behalf of the administration.
        I would like to begin by saying a few words about the
    importance of this treaty. Today, there is a shortage of print
    materials formatted to be accessible for the many millions of
    people around the world, including Americans at home and
    abroad, who are visually impaired or have other disabilities
    which prevent them from reading standard formats.
        Less than 10 percent of books published worldwide every
    year are available in braille, large print, or accessible
    digital files, according to figures compiled by the World
    Intellectual Property Organization, better known as WIPO. This
    lack of resources creates a deficit of information, culture,
    and education for persons with what are known as ``print
    disabilities.''
        The Marrakesh Treaty addresses the gap in access to print
    materials for these persons by providing, with appropriate
    safeguards, that copyright restrictions should not impede the
    create and distribution of copies of published works in special
    formats accessible to individuals who are blind, visually
    impaired, or otherwise print disabled. It also fosters the
    cross-border exchange of such accessible format copies
    internationally, as Senator Menendez observed.
        I would also like to discuss the important history of this
    treaty, as well as what U.S. accession would mean for the
    purposes of our domestic law.
        The United States was actively involved in the preparatory
    work for this treaty over a number of years. We played a
    leadership role at the diplomatic conference in successful
    negotiation of the treaty, culminating with its adoption by
    consensus on June 27, 2013 in Marrakesh, Morocco, at a
    gathering of 600 representatives from WIPO member states.
        This achievement is a tribute to the sustained commitment,
    effort, and engagement of a number of U.S. federal agencies, as
    well as devoted stakeholders from the private sector and NGOs.
    In particular, the United States Patent and Trademark Office
    led the negotiating team, assisted and joined by experts from
    the U.S. Copyright Office, the Office of the United States
    Trade Representative, the Department of State, the Departments
    of Justice and Education, and the Institute of Museum and
    Library Sciences. I list this group of agencies to fully
    impress upon the committee how extensive support is for this
    treaty throughout the administration.
        Our negotiators consulted closely throughout the process
    with U.S. stakeholders representing intellectual property
    rights holders, print disabled individuals, libraries, and
    other organizations that play a vital role in distributing
    copies of accessible format materials. Many of them were in
    Marrakesh when the treaty was finalized, and it is great to see
    a number of them in the room here today.
        The United States signed the Marrakesh Treaty in October
    2013, and it was transmitted by the White House to the Senate
    for consideration in February 2016. The treaty entered into
    force in September 2016 when Canada became the 20th nation to
    ratify it. Today, 35 countries have ratified or acceded to the
    treaty. But none of these countries has the range of print
    materials as the United States.
        The Marrakesh Treaty contains two principal obligations.
    First, it requires parties to provide exceptions in their
    national copyright laws for the creation and distribution of
    accessible format copies for print disabled persons. Second, it
    requires parties to allow the cross-border dissemination of
    accessible format copies, increasing the number of accessible
    works available in each country, including in the United
    States.
        The provisions of the treaty keep the scope of the required
    exception within the parameters of existing international
    copyright agreements and are compatible with existing U.S. law.
    The treaty requires other countries to adopt exceptions modeled
    closely on those already found in U.S. law. Since 1996, section
    121 of the Copyright Act, better known as the Chafee Amendment,
    has provided a copyright exception that permits authorized
    entities such as libraries to reproduce and distribute
    accessible format copies to persons who are blind or visually
    impaired.
        This treaty is critical to providing access to learning by
    the blind community and individuals with other print
    disabilities worldwide. Ratification by the United States of
    the Marrakesh Treaty will have a significant positive effect.
    It will allow Americans with print disabilities to access an
    estimated 350,000 additional works that they cannot currently
    access.
        Thank you for your consideration of the Marrakesh Treaty.
        And with that, Mr. Chairman, I would be more than happy to
    answer any questions you may have.
        [The prepared statement of Ms. Singh follows:]

                    Prepared Statement of Hon. Manisha Singh

        Thank you, Chairman Corker, Ranking Member Menendez, and members of
    the Committee. I am pleased to appear before you today to testify in
    support of the Marrakesh Treaty.
        I would like to begin today by saying a few words about the
    importance of the Marrakesh Treaty. Today, there is a shortage of print
    materials formatted to be accessible for the many millions of people
    around the world, including Americans at home and abroad, who are
    blind, visually impaired, or who have other disabilities that prevent
    them from reading standard formats.
        Less than 10 percent of books published worldwide every year are
    available in braille, large print, or accessible digital files,
    according to figures compiled by the World Intellectual Property
    Organization. This lack of resources creates a deficit of information,
    culture, and education for persons with what are known as ``print
    disabilities.''
        The Marrakesh Treaty addresses the gap in access to print materials
    for these persons by providing, with appropriate safeguards, that
    copyright restrictions should not impede the creation and distribution
    of copies of published works in specialized formats accessible to
    individuals who are blind, visually impaired, or with other print
    disabilities. It also fosters the cross-border exchange of such
    accessible format copies internationally.
        I would now like to say a bit about the history of the Treaty and
    what accession would mean in terms of U.S. law.
        The United States was actively involved in the preparatory work for
    the treaty over a number of years and played a leadership role at the
    Diplomatic Conference in the successful negotiation of the treaty,
    culminating with its adoption by consensus, on June 27, 2013 in
    Marrakesh, Morocco, at a gathering of 600 representatives from World
    Intellectual Property Organization (WIPO) member states.
        This achievement was a tribute to the sustained commitment, effort
    and engagement of a number of U.S. federal agencies as well as
    stakeholders from the private and non-profit sectors. In particular,
    the U.S. Patent and Trademark Office led the U.S. negotiating team,
    assisted and joined by experts from the U.S. Copyright Office, the
    Office of the United States Trade Representative, the Department of
    State, the Department of Justice, the Department of Education, and the
    Institute of Museum and Library Services.
        Our negotiators consulted closely throughout with U.S. stakeholders
    representing intellectual property rights-holders, blind and other
    individuals with print disabilities, libraries, and other organizations
    that play a vital role in distributing copies of accessible format
    materials. Many of them were in Marrakesh when the Treaty was
    finalized, and it is a pleasure to see a number of them here in the
    room today.
        The United States signed the Marrakesh Treaty in October 2013 and,
    in February 2016, it was transmitted by the White House to the Senate
    for its advice and consent to ratification. The Treaty entered into
    force on September 30, 2016 when Canada became the 20th nation to
    ratify. Today, 35 countries have ratified or acceded to the Treaty. But
    none has the range of print materials that the United States has.
        The Marrakesh Treaty contains two principal obligations. First, it
    requires parties to provide exceptions in their national copyright laws
    for the creation and distribution of accessible format copies for
    persons with print disabilities. Second, it requires parties to allow
    the cross-border dissemination of accessible format copies, increasing
    the number of accessible works available in each country, including the
    United States.
        The provisions of the Treaty keep the scope of the required
    exception within the parameters of existing international copyright
    agreements and are generally compatible with existing U.S. law. The
    Treaty requires other countries to adopt exceptions modeled closely on
    exceptions already found in U.S. law. Since 1996, section 121 of the
    Copyright Act (the Chafee amendment) has provided a copyright exception
    that permits authorized entities, such as libraries, to reproduce and
    distribute accessible format copies to persons who are blind or
    visually impaired.
        This Treaty is seen as critical to providing access to learning by
    the blind community and individuals with other print disabilities
    worldwide. Ratification by the United States of the Marrakesh Treaty,
    together with enactment of implementing legislation that has been
    proposed, will have a significantly positive effect. It will allow
    Americans who are blind or visually impaired or with other print
    disabilities to access an estimated 350,000 additional works that they
    currently cannot read.
        We are all happy to see this Treaty moving forward. Thank you for
    the opportunity to present the Administration's views on the Marrakesh
    Treaty to you today.

        The Chairman. Thank you so much.
        With that, as is the normal, I will turn to our ranking
    member.
        Senator Menendez. Thank you, Mr. Chairman.
        Ms. Singh, thank you for being here and for your testimony.
        I am pleased that we are holding this hearing today on a
    critical treaty. I wish we were doing it more often on other
    treaties. I think treaty consideration is a critical part of
    our job on this committee. They enhance and increase stability
    in an uncertain world. They can deliver material, tangible
    benefits to the United States, its citizens, and businesses.
    And I see treaties as extending American values and principles
    as international norms.
        Would you agree with that?
        Ms. Singh. Yes, Senator, I do think treaties are important.
        Senator Menendez. Besides this treaty, do you know what
    pending treaties the State Department considers a priority for
    consideration by the committee?
        Ms. Singh. Senator, the administration is currently
    reviewing and finalizing its treaty list. I would be happy to
    get back to you.
        Senator Menendez. If you would do so, I would appreciate it
    for the record.
        Have all aspects of the implementing legislation for the
    Marrakesh Treaty been resolved to the satisfaction of the State
    Department and the U.S. Patent and Trademark Office?
        Ms. Singh. Yes, Senator. I believe at this point we have
    closely consulted with stakeholders and throughout the
    interagency, and the implementing legislation is in a format
    that is feasible to move forward.
        Senator Menendez. Thank you, Mr. Chairman.
        The Chairman. I will wait to come to you. I know you want
    to get settled. Senator Cardin.
        Senator Cardin. Thank you, Mr. Chairman. And I thank the
    chairman and ranking member for their leadership on bringing
    this treaty forward with a hearing in this committee and
    hopefully moving it quickly.
        The chairman and ranking member proudly recognize the
    presence of constituents from Tennessee and New Jersey. I would
    just would like to note for the committee that the National
    Federation of the Blind is headquartered in Baltimore,
    Maryland.
        [Laughter.]
        Senator Cardin. I know we have a lot of Marylanders who are
    in the room. It is the oldest and largest nationwide
    organization of blind Americans, and for over 60 years, the
    National Federation of the Blind has been a leading source for
    helping blind and those with low vision find the resources,
    support, and hope they need to lead the lives that they want.
        I really want to applaud the National Federation of the
    Blind. They have not only been the leading voice on behalf of
    the visually impaired. They have been the leading voice on
    behalf of all people with disabilities and have been a
    constructive force in our community on just about every issue
    concerning quality of life for the people in Maryland.
        I also want to just acknowledge what Senator Menendez said,
    and that is dealing with people with disabilities so they have
    full opportunity is a human rights issue and one in which the
    United States needs to be in the leadership. And that is why I
    think the ratification of this treaty is so important.
        And, Mr. Chairman, again I want to thank you. I want to
    thank Senator Menendez. I want to thank the chairman and
    ranking member of the Judiciary Committee for leading the
    efforts on legislation so that we can, in fact, ratify this
    very important treaty.
        And I think, if I am correct, in your testimony that our
    laws already would comply with the requirements under this
    treaty, and that basically it is the U.S. law that would be the
    model that is being used under the Marrakesh Treaty. Is that
    basically correct?
        Ms. Singh. Yes, Senator Cardin, that is correct.
        Senator Cardin. And if I could just add one more point
    here. Obviously, the treaty has gone into effect because they
    have reached the threshold number of ratifying states. We still
    have a large number that have not ratified this treaty. The
    impact of the United States ratifying this treaty, being the
    largest source of material, has its obvious importance in the
    implementation of this treaty. But would it also help other
    countries to motivate them perhaps to join in the treaty?
        Ms. Singh. Yes, Senator, very much so. One of the reasons
    that we should quickly ratify this treaty is because we very
    much think that other nations will be incentivized to join this
    treaty for all of the reasons that you and the other members of
    the committee have stated, that the United States has some of
    the largest collections of print materials, and it would be of
    great benefit to the print disabled community around the world
    to have access to all of these.
        Senator Cardin. So, Mr. Chairman, I just really want to
    encourage this committee to act as promptly as we can and to
    work with our colleagues in the Senate to move the ratification
    process because I do believe it is not only important for our
    country but a signal to many other countries to ratify this
    agreement. Thank you.
        The Chairman. Thank you so much.
        Senator Risch.
        Senator Risch. Thank you very much, Mr. Chairman.
        I really do not have any questions.
        The community nationally and in Idaho has been very active
    in pursuing us to ratify this treaty. And I have had the
    opportunity to go over it in detail. I think this is something
    that really needs to be done quickly, as has been indicated,
    and it certainly has benefits not only for Americans but will,
    I think, benefit people who are sight impaired all over the
    world.
        So thank you very much for holding this hearing, and let us
    see if we cannot move it along.
        The Chairman. Absolutely.
        Senator Shaheen.
        Senator Shaheen. Thank you, Mr. Chairman.
        And thank you, Assistant Secretary Singh, for your
    testimony.
        I share the views of my colleagues that we need to get this
    done as quickly as possible, that it is very important for the
    visually impaired not only in the United States but around the
    world.
        And I just have one question, and that is do you know any
    groups or individuals who are opposed to this treaty?
        Ms. Singh. No, Senator, I am not aware of any opposition to
    the treaty.
        Senator Shaheen. Well, thank you.
        I think, Mr. Chairman, that speaks to the importance of
    expediting this as quickly as possible.
        The Chairman. Thank you.
        I know that it is our norm to have an administration
    witness today, and we thank you for coming up. The fact is the
    administration supports the treaty. We do not know of anybody
    that opposes it. We have worked very, very closely with you all
    the way through and the other members of the administration. I
    thank you for the way that you and others have worked with our
    staff on both sides of the aisle.
        And so, unfortunately, we are not going to grill you today.
    We are not going to give you a hard time.
        [Laughter.]
        The Chairman. I know that you are disappointed and your
    family watching this will be very disappointed.
        [Laughter.]
        The Chairman. But it is just a happy occasion. So thank
    you.
        Senator Menendez. Mr. Chairman, if the Secretary is that
    disappointed, we can change that.
        [Laughter.]
        The Chairman. Director Pompeo wishes his hearing was the
    same.
        [Laughter.]
        The Chairman. But with that, if you would, thank you, and
    we will probably move to the second panel who we have not heard
    from directly. Thank you so much.
        Ms. Singh. Thank you, Chairman Corker. It has been my honor
    to represent the administration on this treaty, and I do agree
    with all the members of the committee that we think this is a
    win for everyone.
        The Chairman. Thank you. Thank you so much.
        With the second panel, our first witness is Scott Labarre,
    Counsel to the National Federation of the Blind. A specialist
    in laws affecting the blind and disabled, Mr. Labarre has
    served as the chair of the American Bar Association's
    Commission on Mental and Physical Disability Law.
        Our second witness is Allan Adler, Executive Vice President
    and General Counsel, Association of American Publishers. In his
    capacity, Mr. Adler leads the AAP's advocacy efforts with
    respect to copyright protection.
        Our third witness is Jonathan Band, an expert on
    intellectual property law. Mr. Band serves as Counsel to the
    Library Copyright Alliance whose members include the American
    Library Association, the Association of Research Libraries, and
    the Association of College and Research Libraries.
        We thank you all for taking the time to be with us today.
    We look forward to your testimony. If you would begin and move
    through in the order introduced, we would appreciate it. And if
    you could limit your comments to 5 minutes or less, we would
    appreciate it. If you have any written materials that you would
    like to provide to us, we are glad to accept those, without
    objection.
        Mr. Labarre.

    STATEMENT OF SCOTT LABARRE, LEGAL COUNSEL, NATIONAL FEDERATION
                      OF THE BLIND, BALTIMORE, MD

        Mr. Labarre. Thank you, Senator Corker, Ranking Member
    Menendez, and members of this committee. I want to bring the
    greetings of our president, Mark Riccobono, and our 50,000-plus
    members across the United States. Also sitting behind me here
    is our immediate past president, Marc Maurer, who I can either
    congratulate or blame for me sitting here today because it was
    nearly a decade ago that he asked me to start working on this
    thing that was sort of a treaty idea about advancing the rights
    of blind people throughout the world to access information.
        I have prepared some extensive written remarks and
    submitted those to your staff, and I do appreciate them being
    part of the record.
        When we talk about this issue, for those of us who are
    blind and otherwise print disabled, this is much more than a
    copyright issue. It is truly a human rights issue. We have said
    in the National Federation of the Blind--in fact, our founder,
    Dr. Jacobus tenBroek, argued that the blind and other people
    with disabilities have a right to live in the world.
    Fundamental to that right is the right to access information.
    Blindness is a physical disability that restricts our ability
    to read the printed word, but as this committee knows, there
    are ways to provide that same information in alternative
    formats. The problem has been that the regular marketplace has
    not provided those accessible formats, and copyright law has
    stood as a barrier to producing those formats in a timely
    fashion.
        Additionally, international copyright law led us to a
    situation where even if we had created an accessible work here
    in the United States, we could not share that with others in
    the world. This has created what we have been calling the book
    famine for the blind.
        A moment about my personal story. I went blind at age 10. I
    loved to read. It was one of my favorite things to do. I
    thought that ability had been taken away from me forever. Soon,
    though, I realized I could learn braille and use books in an
    audio format. And actually at that time, these books came on
    vinyl records, believe it or not.
        [Laughter.]
        Mr. Labarre. And this was amazing. This was wonderful
    because once again I could read. But the problem was I was
    getting books months--at a minimum, months--after my sighted
    colleagues had received them and oftentimes years.
        Later I ran into another barrier when in college I was
    pursuing a double major in political science and Spanish. I had
    to drop that Spanish major because I could no longer get access
    to the kinds of materials I needed in Spanish. What is sad is
    those materials existed. I just could not get my hands on them.
        So we have worked for many years to come to this point
    where this treaty is ready to be ratified by the United States
    and send to the world a signal that the right to access
    information is indeed a human right, a priority of the United
    States of America.
        I want to thank the U.S. Government and its delegation who
    worked very hard over the years to help us achieve the treaty,
    in particular, Professor Justin Hughes who led the U.S.
    delegation at that time. I also want to thank the other
    copyright stakeholders, the Association of American Publishers
    and the Library Copyright Alliance, for their support over
    these many years.
        This has been a hard and arduous process because we have
    been talking about copyright, and even though I was not
    originally all that familiar with copyright law, I soon learned
    that copyright law is rather hotly contested let us say. And
    for the key stakeholders to put aside their long-held
    differences and views about copyright and make the Marrakesh
    Treaty become real, we thank them very much.
        So at this point, Senator Corker, I will stop and turn it
    over to my colleague, Allan Adler, and I will be happy to
    answer questions when that is appropriate.
        [The prepared statement of Mr. Labarre follows:]

                     Prepared Statement of Scott C. Labarre

                                  introduction
        Good Morning Chairman Corker, Senator Menendez, and Members of the
    Foreign Relations Committee: Today, I bring you greetings on behalf of
    President Mark Riccobono and the over 50,000 members of the National
    Federation of the Blind, our nation's oldest and largest organization
    of the blind. I am Scott LaBarre and I serve as Legal Counsel to the
    Federation, and specific to the topic of today's hearing, I have also
    been serving as NFB's delegate to the World Intellectual Property
    Organization (WIPO) since 2009 when Dr. Marc Maurer, our Immediate Past
    President, appointed me to do so. Over the last 9 years, I have
    attended all of the relevant negotiating sessions that occurred mostly
    in Geneva and concluded in Marrakesh. After the Treaty's adoption, WIPO
    created the Accessible Books Consortium (ABC) to help implement the
    Treaty and I serve as a member of ABC's board representing the World
    Blind Union of which the Federation is a member.
        I thank you for today's opportunity to provide testimony regarding
    the Marrakesh Treaty to Facilitate Access to Published Works for
    Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled
    (Marrakesh Treaty). This Treaty will dramatically improve the lives of
    blind and print disabled Americans as well as help our blind brothers
    and sisters around the world by opening up access to countless
    accessible works that we cannot currently acquire. We urge you to
    ratify the Marrakesh Treaty without delay and also adopt S. 2559, the
    Marrakesh Treaty Implementation Act.
        Before addressing the substance of my remarks, I must first thank
    you, Senator Corker, for your hard work, and that of your staff for
    laying the groundwork necessary to bring about today's important
    hearing. I also thank you, Senator Menendez, for your efforts in this
    regard. We additionally want to express our gratitude to Senator
    Grassley of Iowa and Senator Feinstein of California for introducing S.
    2559 which will amend our copyright law to implement this life changing
    treaty.
                               general background
        For us, the Marrakesh Treaty represents far more than a copyright
    treaty that creates exceptions and limitations to reproduce materials
    into accessible formats and exchange those formats across international
    borders. The Treaty embraces a fundamental human right. The
    Federation's founder, Dr. Jacobus tenBroek, said, ``The blind have a
    right to live in the world. That right is as deep as human nature; as
    pervasive as the need for social existence; as ubiquitous as the human
    race; as invincible as the human spirit.'' Fundamental to the right to
    live in the world is the right to access information.
        Accessing information, especially in a timely fashion, has been one
    of the significant barriers posed by blindness and print disabilities.
    Those without such disabilities take for granted the ability to pick up
    a book or other printed material and simply read it. For us, it is
    necessary to convert the printed word into some type of accessible
    format such as Braille, audio, or accessible electronic text. It is
    true that modern technology has allowed electronic text to be turned
    into speech. Conceptually, that would allow anything produced
    electronically to be read with assistive technology. However, much of
    the material produced in electronic text is designed in such a way to
    be incompatible with the assistive technology used by the blind, thus
    requiring conversion into a format that is accessible for the blind and
    print disabled.
                                 personal story
        Allow me a moment to explain how these barriers have affected me
    directly. Prior to losing my vision to a childhood virus at age ten, I
    absolutely loved reading. One of my greatest joys as a young child was
    going to my elementary school's library and perusing the thousands of
    books available there. To this day, my memories of the library at Royal
    Oaks Elementary School located in Woodbury, Minnesota are vivid and
    ones I recall with great fondness.
        When I lost my vision, I thought that the treasure trove of
    information available to me had been stolen and lost to me permanently.
    After a while, I realized that all was not lost. By learning Braille, I
    recovered the ability to read for myself and once again go to sleep at
    night with a book in my hands. These books came to me through the
    Library of Congress National Library Service for the Blind and
    Physically Handicapped. In addition to the Braille texts, I had access
    to books in an audio form. At first, these books came to me on vinyl
    records, later replaced by cassette tapes.
        Although my ability to read Braille and audio books allowed me to
    regain some of my independence, it was not a complete solution. Even
    though I grew up in a wealthy nation with substantial resources, I had
    access to a negligible percentage of what my sighted peers took for
    granted.
        Even when I could get my hands on accessible books, it often
    occurred long after my sighted friends had read the same information. I
    was always trying to catch up and struggling to keep pace. Many times,
    my Braille or audio school books came to me months after my sighted
    colleagues had plowed through the information. Later I ran into another
    significant information barrier while attending college at St. John's
    University in Minnesota. Originally, I had planned on a double major in
    Government and Spanish. Ultimately, I dropped that Spanish major
    precisely because I could not get access to Spanish novels and other
    materials.
        Despite the barriers I faced, I regard myself as a fortunate and
    successful person. I am an attorney who runs and operates his own law
    firm. I have argued before courts all over the United States and had
    the privilege of engaging in international projects like the Marrakesh
    Treaty. I own my home in Denver, Colorado and I have a beautiful wife
    and two terrific children.
        I attribute my success largely to my family. My mom and dad pushed
    the local school system hard to insure that I learned the alternative
    techniques of blindness like Braille and independent cane travel and to
    provide books in alternative formats.
        The National Federation of the Blind's positive philosophy on
    blindness has also been absolutely critical in helping me achieve
    success. Our official and heart felt message is: ``The National
    Federation of the Blind knows that blindness is not the characteristic
    that defines you or your future. Every day we raise the expectations of
    blind people, because low expectations create obstacles between blind
    people and our dreams. You can live the life you want; blindness is not
    what holds you back.''
        I have been fortunate because I managed to gain access to a wide
    array of accessible information, but it has always been a struggle to
    keep up. Tragically, the vast majority of blind and visually impaired
    individuals do not have access to enough information to put them on a
    path to success.
                         need for this copyright treaty
        In addition to the traditional barriers limiting our right to read,
    namely the barriers of our inability to read the printed word and that
    of inaccessible information technology, there is another significant
    barrier to our full enjoyment of the right to access information, and
    it is copyright law. Without an exception or limitation, international
    law makes it abundantly clear that reproducing a copyrighted work
    without the permission of the rights holder, any kind of reproduction,
    violates the exclusive right that the copyright holder possesses to
    control distribution of the work. The only way around this exclusive
    right has been to ask permission of the rights holder, permission that
    either is denied or takes a long time to acquire. That is why the
    National Federation of the Blind joined the Association of American
    Publishers in 1996 and urged and ultimately convinced Congress to amend
    the United States Copyright Act to include an exception permitting
    reproduction of published works into accessible formats such as
    Braille, audio, and accessible electronic text, the so-called Chafee
    Amendment.
        Our domestic exception, however, did not address the great dearth
    of accessible works throughout the world. It has been estimated that
    well over 95 percent of the world's works have not been made available
    in accessible formats. Unfortunately international copyright law either
    out right banned the practice or made it incredibly difficult to
    exchange accessible works across international borders. These
    circumstances also led to the needless duplication of accessible works
    in nations that shared a common language. This phenomenon later became
    known as the book famine for the blind.
                       brief history on treaty's adoption
        That is why we engaged with our partners in the World Blind Union
    to put forward an international agreement that would amend
    international copyright law proactively to permit exceptions and
    limitations allowing reproduction of works into accessible formats and
    to allow such accessible works to flow across international borders.
    Reproduction of these works will be carried out by what are known as
    authorized entities that create the accessible material on a nonprofit
    basis for the exclusive use by the blind or those with print
    disabilities. Ultimately, these efforts culminated in the Marrakesh
    Treaty adopted by the member states of WIPO in June of 2013, signed by
    the United States in October of 2013, and forwarded to the United
    States Senate in February of 2016.
        The treaty proposal was first tabled before WIPO in 2009, and the
    Diplomatic Convention successfully concluded negotiations in 2013. In
    the international agreement context, this is a relatively quick time
    period, but the process was arduous and, at times, hotly contested. The
    Marrakesh Treaty represents the first time that the international
    community has adopted an agreement exclusively expanding exceptions and
    limitation to copyright law without granting further rights to
    intellectual property holders. Naturally, traditional copyright
    stakeholders vigorously debated with one another about the scope and
    reach of what would become the Marrakesh Treaty. Additionally, concerns
    of developing and least developed nations were pitted against the
    interests of the first world. All of these factors played into the
    circumstances we encountered while entering the first days of the
    Marrakesh Diplomatic Conference. At the time, 37 issues remained
    unresolved as that Conference began. Most were skeptical about whether
    the treaty text could be successfully concluded.
        To achieve the birth of the Marrakesh Treaty, it took the hard work
    and tireless advocacy of key stakeholders. The Federation led the
    effort here in the United States to advocate for a strong and practical
    treaty, and we enjoyed the support of the American Council of the
    Blind, American Foundation for the Blind, and Benetech (operator of
    Bookshare), the largest private authorized entity in the world. It also
    took the good will and ability to compromise by traditional copyright
    stakeholders such as publishers and libraries represented here in the
    U.S. by the Association of American Publishers and the Library
    Copyright Alliance. Strong leadership from key WIPO member states was
    required to reach consensus and ultimate success.
        In the United States, we have a great deal for which to be proud.
    The U.S. government delegation exercised tremendous leadership and
    skill and brought unwilling nations to the table. I particularly wish
    to thank Professor Justin Hughes of the Loyola Law School at Loyola
    Marymount University in Los Angeles who led the U.S. delegation for his
    tireless work, creative drafting, and negotiating skills. Without our
    U.S. based stakeholders, it would not have been possible to bring the
    Marrakesh Treaty into existence. It has been the same group of
    organizations and individuals who have helped Senate staff draft the
    implementation language now in consideration by this chamber in S.
    2559.
                             support for the treaty
        Ratification and implementation of the Marrakesh Treaty is being
    supported by a broad coalition of stakeholders. The American Council of
    the Blind, American Foundation for the Blind, American Library
    Association, American Printing House for the Blind, Association of
    American Publishers, Association of College and Research Libraries,
    Association of Research Libraries, Association of University Centers on
    Disabilities, Authors Alliance, Authors Guild, Benetech (operator of
    Bookshare), National Center for Learning Disabilities, National
    Federation of the Blind, National Industries for the Blind, National
    Music Publishers Association, Open Society Policy Center, and Perkins
    School for the Blind, all urge you to ratify Marrakesh and pass S. 2559
    without delay! I should also mention that I happen to sit on the
    American Bar Association Board of Governors and as a Member of our
    House of Delegates. In 2014, we passed Annual Resolution 100 urging
    ratification and implementation of the Marrakesh Treaty.
       tremendous benefits of the treaty for the blind and print disabled
        As I alluded to earlier, there is a great dearth of accessible
    material available to the world's 285 million blind and visually
    impaired individuals. Millions more undoubtedly have a print disability
    that is also covered by the Treaty. In dozens of nations throughout the
    world, there are exactly zero texts available in an accessible format
    for blind individuals in their native language. Although it must be
    admitted that no one knows precisely the exact number of published
    works currently available in accessible formats, the World Blind Union
    has estimated that approximately 95 percent of published works are not
    accessible to the blind and visually impaired.
        The situation is slightly better here in the U.S. If you combine
    the collections of the National Library Service for the Blind and
    Physically Handicapped and that of Bookshare, our two largest
    authorized entities, you will find approximately 800,000 accessible
    titles. Even this falls far short of the tens of millions of works
    available to those who are not blind or otherwise have a print
    disability.
        The benefits of ratifying and implementing the Marrakesh Treaty are
    clear for blind and print disabled Americans as well as for those
    throughout the world. For Americans, we would almost immediately have
    access to hundreds of thousands of accessible works in English from the
    United Kingdom, Canada, and Australia as well as the dozens of other
    English speaking nations. Nearly 200,000 accessible works in Spanish
    will be available from Spain and Latin America, something that would
    have been incredibly helpful to me when I was in college. There are
    hundreds of thousands of accessible titles available in dozens of
    additional foreign languages which will also be available to those of
    us here in the United States. Meanwhile, the hundreds of millions of
    blind and visually impaired individuals living elsewhere in the world
    will gain the ability to access the accessible titles we have produced
    here in America.
        There are tremendous benefits to ratifying and implementing the
    Marrakesh Treaty, and we are aware of no disincentives. The amount of
    money we are requesting Congress to appropriate to bring Marrakesh into
    reality in the U.S. is exactly zero. The Treaty and the implementing
    legislation before Congress have been crafted carefully to protect the
    rights of creators and publishers while meeting the accessibility needs
    of the blind and print disabled. No one is opposing ratification and
    implementation of the Marrakesh Treaty.
                                   conclusion
        On behalf of blind and print disabled Americans and my friends
    throughout the world, I thank you for the opportunity to testify here
    today. In 1969, I am sure that Crosby, Stills, and Nash never imagined
    that their express to Marrakesh might be hijacked by the blind, but as
    Crosby, Stills, and Nash sing, ``all aboard that train!'' It is time
    for the United States to join the 37, and growing, nations of the world
    and board the Marrakesh Express! We in the National Federation of the
    Blind urge you to ratify the Marrakesh Treaty and pass S. 2559 to
    implement it. In so doing, you will throw open the door to a wealth of
    information available to the blind and print disabled. Access to that
    information will significantly further our ability to live the lives we
    want by obtaining better education and increased employment. Through
    bold legislative action now, you will help us gain much greater
    inclusion into mainstream life and access to all of the promise our
    great nation holds. Please help us shatter the information barrier that
    for far too long has stood in our way!

        The Chairman. Thank you so much.
        Mr. Adler.

    STATEMENT OF ALLAN ADLER, EXECUTIVE VICE PRESIDENT AND GENERAL
      COUNSEL, ASSOCIATION OF AMERICAN PUBLISHERS, WASHINGTON, DC

        Mr. Adler. Thank you, Chairman Corker, Ranking Member
    Menendez, and members of the committee.
        AAP is a national trade association that represents leading
    U.S. book, journal, and education publishers on law and public
    policy issues. In the written statement I submitted, you can
    see the highlights of many different projects we have done to
    advance the cause of accessibility for the products of the
    industry.
        Before the digital age, laborious conversions of
    publishers' single format production files were required to
    achieve limited accessibility for people with print
    disabilities. Born accessible copies were unavailable in
    consumer markets and most accessible copies had to be made by a
    few nonprofit suppliers with technical skills but limited
    resources, working with publishers or with publishers' consent
    so their copies would be considered legal.
        Today digital applications enable many accessibility
    features to be built into publishers' production processes,
    publications, and content platforms, moving them closer to
    serving the extraordinary needs of people with print
    disabilities through ordinary consumer markets.
        At its core, the Marrakesh Treaty internationally adopts
    key concepts of the Chafee Amendment, as was explained by Ms.
    Singh.
        AAP's support for the Marrakesh Treaty is a unique
    exception to our opposition to the WIPO's consideration of
    multilateral treaties comprised only of limitations and
    exceptions to the rights of copyright owners. And the reason
    for that is that the treaty is a special case, just as my
    friend Scott said, because it helps tackle the fundamental
    human rights issue of discrimination against individuals based
    on their personal disabilities, and it does so in a manner that
    directly echoes one of the key elements in U.S. copyright law.
        Given its multilateral nature and particular importance for
    people with print disabilities in less developed countries, AAP
    understood that the treaty would have to follow and allow
    optimal flexibility for compliance with its obligations in
    order to function across a diverse spectrum of national legal
    systems, cultural perspectives, and economic and technological
    resources and capabilities. We also knew the need to
    accommodate such diversity created special challenges for
    building predictability and accountability into its structure,
    particularly for the authorized entities that would be pivotal
    players in achieving its goals.
        The Obama administration's proposed implementing
    legislation fell short on this important issue, failing to
    incorporate the modest but nonetheless significant practices
    that authorized entities must establish and follow under
    article 2(c) of the treaty. But S. 2559, the proposed Marrakesh
    Treaty Implementation Act, that notes the bipartisan leadership
    of this committee along with that of the Senate Judiciary
    Committee as original cosponsors, corrects this omission in a
    manner that is endorsed by AAP and other stakeholder advocacy
    groups.
        In conclusion, let me emphasize that AAP views the
    ratification and implementation of the Marrakesh Treaty as
    important transitional steps that are currently needed while
    publishers and their technology partners continue to make
    progress toward the shared goal of all stakeholders on this
    issue: a common marketplace where people with print
    disabilities can at the same time, in the same manner, and at
    the same price as other consumers purchase copies of published
    literary works and enjoy them without having to demonstrate
    special qualifications or depend on regulatory privileges for
    their availability.
        As born accessibility becomes increasingly common, a
    critical for publishers and authors will be the need for a
    commercially available exclusion in the Chafee Amendment and
    similar foreign copyright laws to acknowledge the transformed
    consumer landscape. Clearly, it would be unfair to allow
    regulatory measures like the Chafee Amendment to privilege
    competing free production and distribution of the same works in
    accessible copies.
        While copyright exemptions may be needed to serve a
    continuing safety net function until the availability of born
    accessible publications reaches its tipping point or even
    afterwards for works that are extremely difficult to make
    accessible, Congress should anticipate an eventual need to add
    a commercially available exclusion to the Chafee Amendment when
    the marketplace indicates it is appropriate to do so. But that
    is not this day.
        And today AAP looks forward to working with this committee
    and the Senate to ratify the Marrakesh Treaty, as well as
    working with the Senate and House Judiciary Committees and the
    rest of Congress to enact S. 2559, the proposed Marrakesh
    Treaty Implementation Act. Thank you.
        [The prepared statement of Mr. Adler follows:]

                    Prepared Statement of Allan Robert Adler

        Chairman Corker, Ranking Member Menendez and Members of the
    Committee: On behalf of the Association of American Publishers
    (``AAP''), thank you for this opportunity to publicly support the
    ratification and implementation of the Marrakesh Treaty to Facilitate
    Access to Published Works for Persons Who Are Blind, Visually Impaired
    or Otherwise Print Disabled (``Marrakesh Treaty'').
        AAP represents the leading book, journal, and education publishers
    in the United States on matters of law and public policy. Our principle
    mission is a rational legal framework that incentivizes and protects
    the publication of creative expression, professional content, and
    learning solutions. AAP members participate in both local markets and
    the global economy to the betterment of the world we live in.
        AAP and its member publishers have a strong history of working with
    government agencies and legislatures, disabilities advocacy groups,
    technology developers, and educational and library communities to make
    accessible versions of literary works more available for those who need
    them. Publishers regularly export the works of American authors to
    global audiences while introducing U.S. readers to wide varieties of
    foreign literature; they know firsthand the disparity that readers with
    print disabilities face around the world. For these reasons, AAP was
    pleased to work with the U.S. Government and the World Intellectual
    Property Organization (``WIPO'') to draft, adopt and implement the
    multilateral Marrakesh Treaty. (Brief highlights of AAP's accessibility
    efforts with relevant links appear in an Appendix following this
    statement.)
        The path of AAP's efforts follows a chronological evolution in
    improving accessibility primarily on the basis of developments in
    digital technologies and their applications. Before the advent of the
    digital age, accessibility for hard-copy printed materials generally
    required the laborious individual conversion of publishers' single-
    format production files to make accessible versions used with assistive
    technology. The inability to produce ``born accessible'' copies of
    commercial works meant that, as a practical matter, consumer markets
    for accessible publications did not exist, and dependence on regulatory
    approaches centered on copyright exemptions were necessary to ensure
    the availability of accessible versions of print literary works.
        Overtime, however, digital applications have enabled many
    publishers to build accessibility features into their production
    systems, helping many readers with print disabilities to have immediate
    access to various literary works. As innovative means for enhancing
    digital formats continue to be developed and integrated into their
    products and platforms, publishers are moving closer to the ability to
    fully serve the extraordinary accessibility needs of individuals with
    print disabilities through ordinary consumer markets.
        At its core, the Marrakesh Treaty adopts for international
    application the key concepts of the Chafee Amendment, an exemption
    enacted in the U.S. Copyright Act (17 U.S.C. Section 121) in 1996 to
    permit certain ``authorized entities'' to reproduce and distribute non-
    dramatic literary works in accessible formats exclusively for use by
    individuals with print disabilities without the need for permission
    from or payment to the owner of those rights for such works.
        Countries that are Contracting Parties consenting to be bound by
    the terms and obligations set forth in the Marrakesh Treaty must enact
    standard provisions like the Chafee Amendment in their national
    copyright laws for the privileged creation and distribution of
    accessible format copies of covered works, and allow the import and
    export of such copies through cross-border exchanges with ``authorized
    entities'' or ``eligible person'' beneficiaries in other countries that
    are also Contracting Parties.
        AAP's support for the Marrakesh Treaty is a unique exception to our
    continuing opposition to WIPO's consideration of multilateral treaties
    comprised only of limitations and exceptions to the rights of copyright
    owners. Like other representatives of copyright owners, AAP believes
    the marketplace functions best when international instruments reflect
    baseline protections, and do not interfere with private sector
    innovation or dictate the national legal norms of the United States and
    other countries.
        The Marrakesh Treaty is a special case because it addresses the
    fundamental human rights concern of discrimination against individuals
    based on their personal disabilities, and does so in a manner that
    directly echoes the elements of the Chafee Amendment in U.S. copyright
    law. AAP, however, strongly opposes any additional international
    efforts to create new ``limitations and exceptions only'' treaties at
    the expense of the exclusive rights afforded to authors and publishers.
    For example, two such pending proposals at WIPO to create broad new
    copyright privileges for educational and research institutions,
    libraries and archives are unnecessary and inappropriate in the context
    of the well-established international legal regimes that delineate
    basic global standards for copyright rights, limitations and exceptions
    under the Berne Convention, the WTO-administered Agreement on Trade-
    Related Aspects of Intellectual Property Rights (``TRIPS''), and the
    1998 WIPO Copyright Treaty. The proposed legal instruments could
    devastate important existing publishing markets both in the U.S. and
    abroad.
        Given the multilateral nature of the Marrakesh Treaty and its
    particular importance for efforts to expand the availability of
    accessible copies of literary works in lesser- and least-developed
    countries, AAP and its members understood the need for Treaty
    obligations to be set forth in ways that allowed optimal flexibility
    for compliance across a diverse spectrum of national legal systems,
    cultural perspectives, and economic and technological resources and
    capabilities. The need to accommodate such diversity created special
    challenges for building reasonable levels of predictability and
    accountability into the Treaty, particularly for the ``authorized
    entities'' that would be the pivotal players in globally implementing
    the Treaty to achieve its goals.
        The Obama Administration's proposed implementing legislation fell
    short on this important issue, failing to incorporate the relatively
    modest but nonetheless significant ``practices'' that authorized
    entities are expected to ``establish and follow'' under Art. 2(c) of
    the Marrakesh Treaty. But S.2559, the proposed ``Marrakesh Treaty
    Implementation Act'' introduced last month by the Chairman and Ranking
    Member of this Committee, along with the Chairman and Ranking Member of
    the Senate Judiciary Committee, and their colleagues Senator Leahy,
    Senator Harris and Senator Hatch--the original sponsor of the
    legislation subsequently known as the Chafee Amendment--corrects this
    omission in a manner endorsed by AAP and other stakeholder advocacy
    groups, and similar to the approach adopted by the European Union in
    the Directive and Regulations that will guide its 28 Member States in
    implementing the Treaty.
        In conclusion, let me emphasize that AAP views the ratification and
    implementation of the Marrakesh Treaty as important transitional steps
    that are currently needed to expand the availability of accessible
    format copies of literary works for individuals with print disabilities
    as publishers and their partners in the technology community continue
    to make progress toward the routine marketplace availability that is
    the shared goal of all stakeholders on this issue.
        In this continuing transitional environment, it is important to
    ensure that still-necessary regulatory measures like the copyright
    exemptions boosted by the Treaty do not diminish incentives for the
    investments that publishers and others are making to reach the point
    where individuals with print disabilities can--at the same time, in the
    same manner and at the same price as other consumers without such
    disabilities--acquire in commercial markets published literary works
    reflecting the full spectrum of human interests, and enjoy them without
    having to demonstrate any special qualifications or depend upon special
    privileges for their availability.
        As marketplace accessibility becomes increasingly common, a
    critical issue for publishers and authors will be the need for a
    ``commercially available'' exclusion in the Chafee Amendment and
    similar foreign copyright laws to acknowledge the transformed
    accessibility landscape.
        The key economic premise underlying enactment of the Chafee
    Amendment in 1996, as noted in contemporaneous Congressional testimony
    by the Register of Copyrights (which was cited in Senator Chafee's
    floor remarks), was that ``blind and physically handicapped readers''
    did not constitute a ``viable commercial market'' for publishers. Under
    those circumstances, it simply was assumed that publishers were not
    likely to publish for that defined market and thus would not experience
    economic harm if the law allowed a select group of governmental
    agencies and non-profit organizations to serve that specifically-
    defined population by reproducing and distributing copies of
    copyrighted works in ``specialized formats.''
        The validity of that premise, however, continues to diminish as
    ebooks and audiobooks, online digital platforms, and standardized
    publishing formats like EPUB3 have made literary works more accessible
    and easily available through downloads, streaming and online display.
    AAP's EPUB3* Implementation Project and parallel efforts like the
    EDUPUB Initiative will continue to significantly advance accessibility
    in the marketplace as publishers work with retailers, digital content
    distributors, device makers, reading systems providers, assistive
    technology experts and standards organizations to advance EPUB3 as the
    global distribution format for publications on the World Wide Web.
        As these developments produce accessible offerings in the market,
    it will be unfair to allow regulatory measures like the Chafee
    Amendment to privilege competing free reproduction and distribution of
    the same works in accessible copies. The Marrakesh Treaty treats
    adoption of a ``commercially available'' exclusion as an option, rather
    than a requirement, for Contracting Parties, but publishers in the UK,
    Canada and Australia can already take advantage of such provisions in
    their national laws. While copyright exemptions may need to serve a
    continuing ``safety net'' function until marketplace accessibility
    reaches its tipping point (and even afterwards for certain works that
    are extremely difficult to make accessible), Congress should anticipate
    the need to consider adding a ``commercially available'' exclusion to
    the Chafee Amendment when the marketplace indicates it is appropriate
    to do so.
        AAP looks forward to working with this Committee and the Senate to
    ratify the Marrakesh Treaty, as well as with the Senate and House
    Judiciary Committees and the rest of Congress to enact S.2559, the
    proposed Marrakesh Treaty Implementation Act. And, again, we thank you
    for this opportunity to state our support for ratification and
    implementation of the Treaty on the public record.
            appendix: highlights of aap work on accessibility issues
        Chafee Amendment (17 U.S.C. Section 121)--In 1996, AAP worked with
    Senator Hatch and advocacy groups for blind and visually-impaired
    individuals to draft and enact legislation establishing an exemption
    under U.S. copyright law to permit certain ``authorized entities'' to
    reproduce and distribute copies of previously published, non-dramatic
    literary works in ``specialized formats'' exclusively for use by
    ``blind or other individuals with disabilities,'' without the need to
    obtain permission from the copyright owners of such works.\1\
        Known today as ``the Chafee Amendment'' because of its subsequent
    enactment through the efforts of another Senate sponsor, the exemption
    has greatly aided the work of non-profit and governmental entities,
    including State and local educational agencies and university
    disability student services (DSS) offices (among others), in enabling
    them to convert certain literary works into accessible formats to meet
    the reading needs of persons with print disabilities.
        State Accessibility Legislation--State legislatures periodically
    consider proposals to improve the timely availability of accessible
    instructional materials for students with print disabilities.
    Typically, these proposals involve statutory or regulatory
    requirements, usually implemented through contractual provisions
    regarding the adoption or procurement of textbooks and other
    instructional materials, which obligate publishers to provide
    electronic files in one of several specified file formats for use as
    source files from which accessible versions of the instructional
    materials may be produced and provided to students who are qualified to
    obtain them.
        State legislative processes, however, are not always responsive to
    input from the publishing community, including on federal preemption
    issues, resulting in proposed legislation that publishers cannot
    support because of practical problems with their provisions and
    concerns that multiple new State laws of that type present a
    complicated patchwork of diverse and often inconsistent compliance
    requirements for publishers whose markets extend across State lines and
    national borders. Despite these drawbacks, AAP and its member
    publishers have engaged in good faith efforts to help State legislators
    develop workable initiatives to address certain accessibility needs of
    students.
        Bookshare, Inc.--AAP has helped Bookshare, the first online library
    subscription service for people with print disabilities, establish its
    credibility within author and publisher communities from its inception
    as an ``authorized entity'' under the Chafee Amendment, and has
    encouraged publishers and authors to accept and support Bookshare's
    policies and practices for ``scanning'' or acquiring digital files of
    print books that qualifying subscribers to the Bookshare service can
    download in accessible DAISY and BRF digital formats. AAP's support has
    reflected Bookshare's sensitivity to the legitimate concerns of
    copyright owners, including its willingness to work with AAP on matters
    such as its Seven Point Digital Rights Management Plan and the terms of
    its legal agreements with qualifying members, volunteers and
    contributing publishers and authors.\2\
        IDEA Amendments of 2004--AAP worked with disabilities advocacy
    groups to try to improve the timeliness of the provision of accessible
    textbooks and other core instructional materials to elementary and
    secondary school students with print disabilities. Problems thwarting
    timely provision included the need to contact the publisher of a
    particular work to obtain electronic files in different formats for
    each of their materials in order to comply with individual requests
    received from different States or different localities within a single
    State. File formats widely used by publishers for ordinary publications
    were unsuitable for use in reproducing those materials in specialized
    formats for individuals with print disabilities, and the process of
    converting them into more suitable formats was costly and labor-
    intensive, requiring ``tagging'' in order to structure the file to
    reflect the actual visual characteristics of the printed materials.
        Delays also occurred in the handling process through which the
    electronic file provided by the publisher eventually reached the people
    who actually use it to reproduce and distribute the embodied content in
    accessible specialized formats.
        In response to these problems, AAP and the disabilities advocacy
    groups crafted the proposed ``Instructional Materials Accessibility
    Act'' which was designed to address the causes of these delays and
    inefficiencies by requiring that publishers' electronic files be
    uniformly provided to a central national repository where they could be
    requested for use by State and local agencies in an XML-based format
    that would offer the capability for more flexible tagging to reproduce
    print materials in specialized formats with greater efficiency, quality
    and interoperability. Since their enactment as provisions of the
    Individuals with Disabilities Education Improvement Act of 2004,
    P.L.108-446, the legislation's key ``national file format'' and
    ``central national repository'' features have been implemented as the
    National Instructional Materials Information Standard (``NIMAS'') and
    the National Instructional Materials Access Center (``NIMAC'') through
    federal appropriations to the American Printing House for the Blind.\3\
        AIM Commission--AAP efforts to address the accessibility needs of
    students with print disabilities at institutions of higher education
    have been no less determined or ongoing than its efforts to meet the
    needs of such students at the elementary and secondary school level.
    But, these efforts have had to take into account essential differences
    in both the nature of the instructional materials at issue and the
    manner in which these instructional materials are selected and acquired
    for use by students at these different levels of educational
    instruction.
        For elementary and secondary school students, textbooks and other
    core instructional materials for different subjects at different grade
    levels are generally selected by State or local education agencies
    according to a standardized curriculum, and the State or local
    educational agencies purchase these materials in bulk for students to
    use on loan but then return to school officials after the academic term
    so they can be redistributed for use by students at the same class
    level during the next academic term.
        At colleges and universities, however, instructional materials are
    selected by faculty for each section of a course in much greater
    variety than is found at the elementary and secondary school level.
    They typically differ from section to section within the same course,
    and have to be purchased or otherwise acquired by individual students
    who expect to either keep the materials as their own property or seek
    to recoup part of the purchase costs by selling the materials to other
    students or to a bookstore at the close of the academic term.
        In pursuit of solutions, AAP supported enactment of provisions in
    the Higher Education Opportunity Act of 2008 creating the Advisory
    Commission on Accessible Instructional Materials in Postsecondary
    Education for Students with Disabilities (``AIM Commission''), which
    was charged with making recommendations to Congress after ``conducting
    a comprehensive study to assess the barriers and systemic issues that
    may affect, and available technical solutions that may improve, the
    timely delivery and quality of accessible instructional materials for
    postsecondary students with print disabilities.'' AAP representatives
    participated in the Commission's work and endorsed its Report and
    recommendations in December 2011.\4\
        AccessText Network--While working with Congress, AAP and its
    members focused on higher education continued to seek opportunities to
    work with institutions of higher education, disabilities advocacy
    groups and technology experts to devise ways to make it quicker and
    easier for college and university students with print disabilities to
    obtain the accessible textbooks and other instructional materials they
    need. Initially, these efforts produced the Publisher Look-Up Service,
    a website interface providing a place where DSS offices could search
    for electronic text and permissions contacts at higher education
    publishing companies.
        Subsequently, in 2009, AAP announced a major leap forward in the
    form of its agreement with the Alternative Media Access Center (an
    initiative of the Georgia Board of Regents and the University of
    Georgia) to develop and launch a comprehensive, national online system
    which would expand the timely delivery of print materials to campus-
    based DSS offices by many more publishers, and streamline the
    permission process for scanning copies of print textbooks when
    publisher files are unavailable.
        Funded through donations by AAP member higher education publishers,
    the AccessText Network was established without legislation or taxpayer
    dollars, and has leveraged an online database to enable publishers and
    institutions of higher education to effectively combine and share their
    resources and expertise to ensure that those institutions can more
    easily obtain information about publishers' course materials, request
    electronic text files, and use more efficient acquisition and
    distribution channels.\5\
        WIPO Marrakesh Treaty--AAP worked with the U.S. Government and
    disabilities advocacy groups from 2008-2013 at the U.N.'s World
    Intellectual Property Organization (``WIPO'') to adopt the WIPO
    Marrakesh Treaty to Facilitate Access to Published Works for Persons
    Who Are Blind, Visually Impaired or Otherwise Print Disabled. AAP
    worked both in Geneva and Marrakesh to ensure that the provisions of
    the intensely-negotiated final text of the Treaty remained focused on
    the twin objectives of (1) promoting enactment of limitations and
    exceptions for print disabilities in national copyright laws and (2)
    facilitating the cross-border exchange of accessible format copies of
    copyrighted textual works through Authorized Entities, and were
    consistent with the established framework of international copyright
    treaties and agreements. AAP was the only non-government organization,
    besides three advocacy groups for the blind, explicitly thanked for its
    assistance in the formal closing statement of the United States
    delegation.\6\ AAP supported the U.S. signing of the Treaty in October
    2013 and looks forward to supporting Senate ratification of the Treaty
    and Congressional enactment of implementing legislation.\7\
        Accessible Book Consortium--During the drafting of the Marrakesh
    Treaty, AAP--directly and through the International Publishers
    Association (``IPA'')--worked with WIPO's ``Stakeholders' Platform'' on
    several accessibility pilot programs, including the November 2010
    launch of the Trusted Intermediary Global Accessibility Resources
    (``TIGAR'') project, to explore how licensing could facilitate cross-
    border exchange of accessible titles to individuals with print
    disabilities. In 2011, AAP endorsed the TIGAR project at the Frankfurt
    Book Fair and worked with participating members to authorize the
    availability of published works in accessible formats discoverable via
    database searches across distributed networks. In 2014, the pilot ended
    and TIGAR's database of nearly a quarter million works in 57 languages
    merged into the Platform's establishment of the Accessible Books
    Consortium(``ABC'') , a WIPO-led public-private partnership to promote
    capacity building and Inclusive Publishing (``born accessible''
    training) programs based on the EPUB3 standard. The Consortium remains
    an active complement to the entry in force of the Marrakesh Treaty.\8\
        AIM-HIGH Act--With publication of the previously-discussed AIM
    Commission Report at the end of 2011, AAP began considering action on
    its leading recommendation, i.e., that ``Congress should authorize the
    Access Board to establish guidelines for accessible instructional
    materials that will be used by government, in the private sector and in
    postsecondary academic settings.'' By the end of 2013, AAP had worked
    jointly with the National Federation of the Blind (``NFB'') to craft
    and secure bipartisan introduction of a proposed ``Technology,
    Education and Accessibility in College and Higher Education (``TEACH'')
    Act'' to obtain Congressional authorization and funding to support the
    U.S. Access Board's development of voluntary accessibility guidelines
    for postsecondary education instructional systems as urged by the
    Commission. Since that time, AAP and NFB have been joined by the
    American Council on Education (``ACE'') and other higher education
    advocacy groups, along with the Software and Information Industry
    Association (``SIIA''), in redrafting and renaming the legislation as
    the ``Accessible Instructional Materials in Higher Education (``AIM-
    HIGH'') Act.'' Introduced last year in the House by Reps. Phil Roe (R-
    TN) and Joe Courtney (D-CT), the bill (H.R.1772) currently has 77
    cosponsors. Introduced in the Senate by Senators Orrin Hatch (R-UT) and
    Elizabeth Warren (D-MA), the bill (S.2138) has garnered additional
    bipartisan support from Senators Joni Ernst (R-IA) and Jon Tester (D-
    MT).\9\
        EPUB 3* Implementation Project--This AAP-led initiative was
    developed in a partnership with retailers, digital content
    distributors, device makers, reading systems providers, assistive
    technology experts and standards organizations, and with the support
    and engagement of leading advocates for people with disabilities. Its
    goal was to accelerate the across-the-board adoption of the EPUB 3
    format in the consumer market by identifying and implementing what
    stakeholders consider to be the core set of baseline features critical
    to the format's acceptance. In October 2014, the Project issued a White
    Paper to help advance implementation of the EPUB 3 standard in the
    marketplace for the purpose of achieving greater interactivity for
    users, multimedia-enhanced content, and expanded accessibility for
    people who are blind or have other print disabilities.\10\
        In a separate effort, the EDUPUB Initiative has pursued the goal of
    advancing EPUB 3 for K-20 educational materials. Pearson Education, as
    one of the leaders of this initiative, is sharing one of its own
    specifications for generating EPUB files for the education market
    specifically (known as an ``EPUB 3 Profile,'' in other words, a
    particular implementation of EPUB 3 for educational markets), which the
    EDUPUB participants can use toward developing EDUPUB's open-source EPUB
    3 profile for the industry. The overall stated goal of the EDUPUB
    initiative is ``to advance the effective adoption and use of e-
    textbooks and other digital learning materials by improving
    interoperability, accessibility, and baseline capabilities via broad
    adoption of enabling technical standards.'' Other AAP members, working
    through the Book Industry Study Group (``BISG'')'s Content Structure
    Committee's EDUPUB Working Group, published ``Getting Started with
    EDUPUB: A Guide for Understanding the EDUPUB Profile of EPUB 3'' in
    July 2015.\11\

    ----------------
    Notes

        \1\ See Senator John Chafee's floor statements upon offering
    amendment to the Legislative Branch Appropriations Act, 1997 (H.R.3754)
    at 142 Cong. Rec. S9066 (daily ed. July 29, 1996), and upon Senate
    passage of the Conference Report to the Act, at 142 Cong. Rec. S9763-
    9765 (daily ed. September 3, 1996).
        \2\ See https://www.bookshare.org/cms/legal-information (AAP
    cooperation and support) and https://www.bookshare.org/cms/partners/
    publishers (how publishers support and partner with Bookshare).
        \3\ See http://www.nimac.us/. AAP is a member of the NIMAC Advisory
    Council. See http://www.nimac.us/advisory-council/.
        \4\ See 20 U.S.C. Section 1140/, enacted by Section 709 of Public
    Law 110-315; see also links to the AIM Commission Report at http://
    www2.ed.gov/about/bdscomm/list/aim/publications.html.
        \5\ See http://accesstext.org/about.php.
        \6\ See http://geneva.usmission.gov/2013/06/27/wipo-marrakesh/.
        \7\ See the full text of the WIPO Marrakesh Treaty at http://
    www.wipo.int/treaties/en/text.jsp?file--id=301016.
        \8\ See http://www.accessiblebooksconsortium.org/portal/en/
    index.html.
        \9\ See https://www.congress.gov/bill/115th-congress/house-bill/
    1772/related-bills.
        \10\ See http://publishers.org/news/epub-3-implementation-project-
    white-paper-now-online.
        \11\ See http://epub3.ch/wp-content/uploads/2015/08/EDUPUB-
    Guide.pdf.

        The Chairman. Thank you, sir.
        Mr. Band.

        STATEMENT OF JONATHAN BAND, COUNSEL, LIBRARY COPYRIGHT
                        ALLIANCE, WASHINGTON, DC

        Mr. Band. Mr. Corker, Ranking Member Menendez, members of
    the committee, I am honored to testify today in support of
    Senate ratification of the Marrakesh Treaty.
        I represent the Library Copyright Alliance, which consists
    of the major American library associations.
        I would like to make three points.
        First, ratification of the Marrakesh Treaty will greatly
    enhance the ability of U.S. libraries to provide services to
    Americans with print disabilities.
        Second, the treaty, as we have heard, is based on existing
    exceptions in U.S. copyright law.
        And third, the treaty and implementing legislation have
    broad support among U.S. stakeholders.
        So, first, the treaty will help U.S. libraries provide more
    accessible materials to Americans with print disabilities.
    Libraries in the United States currently serve the needs of
    people with print disabilities either by lending accessible
    copies made by the publishers or by making accessible copies
    themselves when accessible copies are unavailable. There is a
    specific exception in the U.S. Copyright Act known as the
    Chafee Amendment, which permits entities that provide services
    to print disabled people to make and distribute accessible
    copies without infringing copyright. These entities, which
    Chafee calls authorized entities, include libraries. The fair
    use doctrine supplements Chafee and enhances libraries' ability
    to make and distribute accessible copies.
        The problem is that many books published overseas are not
    available in U.S. libraries in accessible forms, not even the
    Hathi Trust Digital Library, which contains over 16 million
    volumes. This is particularly the case with books in languages
    other than the major European languages, which U.S. libraries
    have not collected in great numbers.
        This is where the Marrakesh Treaty comes in. The existing
    copyright laws of countries where these books are published
    usually permit domestic authorized entities to make and
    distribute accessible copies in those countries. These
    copyright laws, however, often do not authorize the export of
    the accessible copies to other countries. The treaty creates a
    legal system that enables the cross-border exchange of
    accessible copies among authorized entities of the countries
    that have joined the treaty. A country that joins Marrakesh
    must permit a domestic authorized entity to export accessible
    copies to an authorized entity in another Marrakesh country,
    and a Marrakesh country must allow its authorized entities to
    import accessible copies from authorized entities in other
    Marrakesh countries. With digital formats such as renewable
    braille, Americans with print disabilities could receive access
    to foreign books within minutes of requesting them.
        Significantly, the treaty makes this happen only if both
    the exporting country and the importing country have joined the
    Marrakesh Treaty. 35 countries have ratified the treaty,
    including major foreign language publishing centers such as
    Argentina, Brazil, Israel, Russia, and South Korea. Moreover
    the European Union has announced that it will ratify the treaty
    this July. Once we ratify the treaty, U.S. libraries will have
    access to the accessible copies in over 60 countries. This will
    greatly benefit Americans with print disabilities who are
    interested in reading books for research or pleasure.
        Second, the treaty is based on a provision of the U.S.
    Copyright Act. Earlier I mentioned the Chafee Amendment, the
    provision in our law that allows authorized entities to make
    and distribute accessible copies. The Marrakesh Treaty is based
    on Chafee. Like Chafee, the treaty operates by permitting
    authorized entities to make and distribute accessible copies.
    Indeed, the treaty uses the same term as Chafee, ``authorized
    entity.'' This is no accident. The first draft of the treaty
    was developed by the U.S. delegation to WIPO. Because of the
    similarity between Chafee and the treaty, the implementing
    legislation, introduced by Chairman Corker and Ranking Member
    Menendez, makes only modest changes to U.S. law.
        Finally, the treaty has broad support among all U.S.
    stakeholders. A broad spectrum of U.S. stakeholders, including
    rights holders, authorized entities, and the disabilities
    community, supported the treaty when WIPO member states adopted
    it in 2013. The same spectrum of stakeholders worked together
    to develop the implementing legislation and is sitting here
    today at this table. Indeed, the three of us have been involved
    throughout the process from Washington to Geneva to Marrakesh
    and back to Washington.
        I personally want to express my gratitude to Mr. Adler and
    Mr. Labarre for all their labors to get us to this point. I
    would also like to thank the committee for holding this hearing
    today.
        Members of the committee, we urge the Senate to ratify the
    treaty expeditiously to ensure that Americans with print
    disabilities can benefit from it as soon as possible. Thank
    you.
        [The prepared statement of Mr. Band follows:]

                      Prepared Statement of Jonathan Band

        Chairman Corker, Ranking Member Menendez, Members of the Committee,
    I am honored to testify here today in support of Senate ratification of
    the World Intellectual Property Organization (``WIPO'') Marrakesh
    Treaty to Facilitate Access to Published Works For Persons Who Are
    Blind, Visually Impaired, or Otherwise Print Disabled (``Marrakesh
    Treaty'').
        I represent the Library Copyright Alliance (``LCA''). LCA consists
    of three major library associations in the United States: the American
    Library Association, the Association of College and Research Libraries,
    and the Association of Research Libraries. These associations represent
    over 100,000 libraries in the United States employing more than 350,000
    librarians and other personnel. An estimated 200 million Americans use
    these libraries over 2 billion times each year.
        I would like to make three points. First, ratification of the
    Marrakesh Treaty will greatly enhance the ability of U.S. libraries to
    provide services to Americans with print disabilities. Second, the
    Treaty is based on an existing exception in U.S. copyright law. Third,
    the Treaty and implementing legislation has broad support among U.S.
    stakeholders.
        i. the treaty will help u.s. libraries provide more accessible
                 materials to americans with print disabilities
        Many of the 200 million Americans who use our libraries have print
    disabilities. They may be blind, dyslexic, or simply elderly and in
    need of large print. Libraries in the United States currently serve the
    needs of these people either by lending copies in accessible formats
    when publishers make accessible format copies; or by making the
    accessible format copies themselves when an accessible format is not
    available. There is a specific exception in the U.S. Copyright Act
    known as the Chafee amendment, 17 U.S.C.  121, which permits entities
    that provide services to print disabled people to make and distribute
    accessible format copies without infringing copyright. These entities,
    which the Chafee amendment calls ``authorized entities,'' include
    libraries. The fair use doctrine, 17 U.S.C.  107, supplements the
    Chafee amendment and enhances libraries' ability to make and distribute
    accessible copies.\1\
        The problem is that many books published overseas are not available
    in any U.S. library in accessible formats--not even in the HathiTrust
    Digital Library, which contains over 8 million titles in 16 million
    volumes. This is particularly the case with books in languages other
    than English or the other major European languages, which are not found
    in U.S. libraries in great numbers. If a book isn't in one of our
    collections, we can't make an accessible format copy. Our libraries
    report that they frequently cannot supply users with print disabilities
    with the foreign titles they request.
        This is where the Marrakesh Treaty comes in. The existing copyright
    laws of the countries in which these books are published usually permit
    domestic authorized entities to make and distribute accessible formats
    in those countries. These copyright laws, however, often do not
    authorize the export of the accessible copies to other countries,
    including the United States. The Marrakesh Treaty creates a system that
    allows the cross-border exchange of accessible format copies among
    authorized entities of the countries that have joined the Treaty.
    Countries that join Marrakesh must permit an authorized entity in their
    country to export accessible format copies to an authorized entity in
    another Marrakesh country. Similarly, Marrakesh countries must allow
    authorized entities to import accessible format copies from authorized
    entities in other Marrakesh countries. With digital formats such as
    renewable braille or audio books, Americans with print disabilities
    would receive access to foreign books within minutes of requesting
    them.\2\
        Significantly, the Treaty makes this happen only if both the
    exporting country and the importing country have joined the Marrakesh
    Treaty. Thirty-five countries have already acceded to or ratified the
    Treaty, including major publishing centers such as Argentina,
    Australia, Brazil, Canada, Israel, India, Mexico, Russia and South
    Korea.\3\ Moreover, the European Union has announced that it will
    ratify the Treaty this July. All European Union member states must
    implement the Treaty in national law by October. Thus, once we ratify
    the Treaty, libraries in the United States will have access to the
    accessible format copies in over 60 countries.\4\ This will greatly
    benefit Americans with print disabilities who are interested in reading
    foreign books for research or pleasure.
        ii. the treaty is based on a provision of the u.s. copyright act
        Before I mentioned the Chafee Amendment, the provision in the U.S.
    Copyright Act that allows authorized entities to make and distribute
    accessible format copies. The Marrakesh Treaty is based on the Chafee
    amendment. Like the Chafee amendment, the Treaty operates by permitting
    authorized entities to make and distribute accessible format copies.
    Indeed, the Treaty uses the same term as Chafee: authorized entity.
    This is no accident. The first draft of the Treaty was developed by the
    U.S. delegation to WIPO. Because of the similarity between Chafee and
    the Treaty, the Marrakesh Treaty Implementation Act, S. 2559, co-
    sponsored by Chairman Corker and Ranking Member Menendez, makes only
    modest changes to U.S. copyright law.
         iii. the treaty has broad support among all u.s. stakeholders
        When WIPO adopted the Treaty in 2013, it was supported by a broad
    spectrum of U.S. stakeholders, including rightsholders, authorized
    entities, and organizations that support people with print
    disabilities. This same spectrum of stakeholders worked together to
    develop the implementing legislation and is sitting at this table
    today. Indeed, the three of us have been involved throughout the entire
    process: working here in Washington to influence the U.S. government
    position on the Treaty; meeting with the delegations of other member
    states in Geneva; cheering as the member states crossed the finish line
    at the diplomatic conference in Marrakesh; and then reaching consensus
    back in the U.S. on the implementing legislation. I personally want to
    express my gratitude to Mr. Adler and Mr. LaBarre for all their labors
    to get us to this point.
        I also would like to acknowledge the efforts of the many U.S.
    government officials involved in the WIPO negotiations and the
    development of the implementing legislation, as well as the staffs of
    this Committee and the Senate Judiciary Committee.
        And of course, I would like to thank the Committee for holding this
    hearing today.
        Members of the Committee, we urge the Senate to ratify the Treaty
    expeditiously to ensure that print disabled Americans can benefit from
    it as soon as possible.

    ----------------
    Notes

        \1\ The complete tapestry of services libraries provide to
    Americans with print disabilities is complex. Libraries at all levels
    purchase and circulate copies in accessible formats such as audio books
    and large print books. The National Library Service for the Blind and
    Physically Handicapped, a unit of the Library of Congress, makes
    accessible copies of books and magazines in braille and audio formats.
    It circulates these accessible copies through a network of cooperating
    libraries, by mail, or by digital download. Some state libraries and
    local public libraries also make and distribute accessible format
    copies. Many research libraries collaborate in the HathiTrust Digital
    Library, which among other services provides full-text online access to
    people with print disabilities. Libraries at post-secondary
    institutions assist students and faculty with research by making
    accessible copies of needed materials. And libraries in K-12
    institutions help those schools meet their obligations under the
    Individuals with Disabilities Education Act to students with print
    disabilities.
        \2\ Under Article 4(2)(a) of the Treaty, an authorized entity may
    supply accessible copies ``by electronic communication by wire or
    wireless means.'' The Treaty provides that accessible format copies
    distributed by an authorized entity must be ``supplied exclusively to
    be used by beneficiary persons.''
        \3\ A compilation of the implementations of the Treaty by countries
    that have ratified or acceded to it can be found at http://www.arl.org/
    storage/documents/2018.04.11--MarrakeshTreaty.pdf.
        \4\ The authorized entities organized in the Accessible Book
    Consortium (``ABC''), sponsored by WIPO, possess approximately 325,000
    titles that would become available to American with print disabilities
    once the United States joins the Marrakesh Treaty. Americans with print
    disabilities would also get access to titles held by authorized
    entities that have not yet joined ABC, such as ONCE in Spain and
    TifloLibros in Argentina, each of which has collections of
    approximately 50,000 titles in accessible digital formats.

        The Chairman. Thank you all three for great testimony.
        And with that, Senator Menendez.
        Senator Menendez. Thank you, Mr. Chairman.
        Thank you all for your testimony. It is nice when we get a
    harmonious panel here. It is not always the case.
        So as I understand it from your testimony, all three of you
    have been working on the Marrakesh Treaty and the implementing
    legislation since its inception. And I understand that you were
    in Marrakesh when the treaty was negotiated as well.
        So I think you have shared some of these, but what insights
    can you share from the negotiation process and what do you see
    as the concrete benefits, obviously the most significant one
    being that individuals who are reading impaired because of
    their vision will have now access to a world of books that they
    did not have? But are there others as well?
        Mr. Labarre. Well, indeed, there are many benefits to this
    treaty, and we have touched on many of them. I would argue that
    nearly a half a million books will become available to
    Americans in accessible formats when we ratify this treaty and
    when the EU comes on board. That is one of the benefits.
        Another is sending a message throughout the world that the
    right to access information is truly a human right.
        And I guess one of the insights that I have learned is that
    when people come together and work hard and share the same end
    goal, you can get across the finish line. You say today that we
    are a harmonious panel. We have not always been harmonious let
    me assure you.
        [Laughter.]
        Mr. Labarre. When we went to Marrakesh in 2013, 37 issues
    remained unresolved in the treaty text. To give you some
    perspective on that, the Beijing treaty for performers of
    audiovisual works started its diplomatic conference in 2012
    with only two issues left to be sorted out. It took a
    tremendous amount of work and compromise in Marrakesh to get
    the deal done. In fact, the king of Morocco sent a message to
    the diplomatic conference that if we could not come to a
    consensus, he would close the airports.
        [Laughter.]
        Mr. Labarre. So that incentivized us and we got the deal
    done.
        Senator Menendez. Okay.
        [Laughter.]
        The Chairman. For those of you who are here today, this is
    not the norm in our committee.
        [Laughter.]
        Senator Menendez. You have given me, Mr. Labarre, some
    ideas of how we might get things done in Washington.
        [Laughter.]
        Senator Menendez. Just very quickly, I gather this from
    your testimony, but I just for the record want to make sure it
    is pinpoint accurate. Mr. Adler and Mr. Band, have all the
    aspects of the implementing legislation been resolved to the
    satisfaction of the stakeholders in the publishing and library
    industries?
        Mr. Adler. Yes, Senator. As I said, we had the difficulty
    of working not only with many different nations that have
    different legal systems and cultural perspectives, but
    remember, we were working with developed countries, less
    developed countries, and the least developed countries who need
    this treaty perhaps more than anyone else does. And given that
    broad spectrum of interests, the ability to accommodate the
    diversity through a process that would ensure some
    predictability and accountability for the manner in which works
    would be exchanged across borders, no longer just within the
    United States, as was the case under the Chafee Amendment
    during the first 20 years of its existence, but now pursuant to
    an international agreement, that means all of these member
    states that become contracting parties will now be able to
    reproduce and distribute copies of works and exchange them
    across borders with other countries. So the idea of
    predictability and accountability was important. As you might
    imagine, in an international group of member states, there are
    different ideas about what constitutes predictability and
    accountability.
        The last issue for us was the need to address the inclusion
    in a revised Chafee Amendment of the provisions of the treaty
    that addressed the practices of authorized entities because it
    is going to be those government agencies and nonprofit
    organizations in each of the contracting parties who will be
    engaged in the cross-border exchange of copyrighted works, and
    we wanted to make sure that they followed their practices. The
    practices that were agreed upon in the treaty are relatively
    modest. What an authorized entity is supposed to do is
    establish and follow its own practices to establish that
    persons its serves are beneficiary persons, eligible under the
    treaty to be able to receive these types of accessible format
    copies, limit to beneficiary persons and authorized entities
    distribution and making available of accessible format copies,
    discourage the reproduction, distribution, and making available
    of unauthorized copies, and finally to maintain due care in and
    records of its handling of copies of works while respecting the
    privacy of beneficiary persons in accordance with the treaty.
        We wanted to make sure that U.S. law implementing the
    treaty reflected those aspects of the treaty because those
    aspects of the treaty had not been part of the original
    provision in the U.S. Copyright Act. And that is why we think
    that the legislation that the chairman and ranking member have
    cosponsored, with the bipartisan leadership of the Senate
    Judiciary Committee, takes care of that problem.
        Senator Menendez. Well, I will close just saying that
    unanimity here is important to the successful passage in the
    Senate, which requires a super majority vote for a treaty.
        And I thank all of you for the hard work that has made this
    moment possible. And, Mr. Labarre, I just would say that you
    are an extraordinary example of, when we give individuals the
    tools, the incredible capacity and ability they have to
    succeed. And I salute you. And thank you all for your
    testimony.
        The Chairman. Senator Kaine.
        Senator Kaine. Thank you to the chair and ranking, and
    thank you to all who are here on behalf of this. I think it is
    a wonderful achievement. I love it when our committee grapples
    with treaty questions. It is an important role that the Senate
    has. And like anything else, it is sort of a muscle memory
    thing. The more you do it, the stronger you get, and the less
    you do it, the weaker you get. And I am glad we are doing it on
    this important cause.
        Neil Yap wrote a piece in the New York University Journal
    of Intellectual Property and Entertainment Law just recently
    about the treaty. And he says this, ``Marrakesh lights a beacon
    into the minds of a part of society that copyright law has left
    behind. A treaty that upholds rights merely reestablishes human
    decency and equal opportunity. Morality cannot be measured in
    opportunity costs. The true costs of neglecting this segment of
    society, however, are the contributions that never came to be
    during decades of stifled potential. Rights enable creation.
    Creations become contributions. Marrakesh is not merely about
    moral progress but cultural and scientific progress as well.''
    I echo that sentiment.
        And similar sentiments have been expressed to me from my
    librarians in Virginia, and I just want to read one wonderful
    story.
        In Virginia Beach, there is a library that has about 18,000
    items that are accessible to folks with visual disabilities,
    and most of them are disabled veterans. Even with 18,000
    items--and that would make this library one of the probably
    most comprehensive in Virginia--they do not have enough to meet
    the demand because they are not only serving their patrons, but
    they are lending materials out to schools, to book clubs, to
    assisted living homes, and other places. They are just short on
    resources.
        Susan Paddock, the director of this library, the Bayside
    Special Services Library in Virginia Beach, which is Virginia's
    largest city, says this, ''For many of my patrons, this is
    their lifeline. They are voracious readers, and it is not
    uncommon for them to read 5 to 10 books per week but they
    eventually run out. Can you imagine what it would be like to
    have no more books to read?'' That made a very big impression
    upon me.
        And I just do not have questions for you because I do not
    want to upset the apple cart when it looks like things are
    going well and my questions often do that.
        But I will just say I join the chair and ranking first in
    thanking them for their advocacy but really for the hard work
    of bringing together disparate points of view to, as Mr.
    Labarre said in his written, get aboard the train, using the
    Marrakesh Express line. I like that a lot. I echo it. I think
    we should do it, and I am glad to be here at the hearing.
        Thanks, Mr. Chair.
        The Chairman. Thank you.
        We thank all of you for being here. I could ask questions,
    but we have worked so well together in advance of this. This is
    a very unusual process where this has all been vetted. You all
    have worked very closely with our staff and others. We know
    that. The fact that there is no controversy around this today
    with differing interests being represented speaks to that.
        So what we will do is leave the record open for written
    questions through the close of business tomorrow--excuse me--on
    Friday. If you could answer those fairly promptly--we know you
    have other responsibilities--we would appreciate it.
        Again, we thank you not only for your efforts to help
    Americans but to help people all around the world. The United
    States has been a leader. You have helped us in this particular
    case continue to be so. We appreciate that very much.
        And without further ado or any other strong controversy,
    none of which exists today, we will adjourn the meeting and
    thank you for your efforts.
        [Whereupon, at 11:25 a.m., the hearing was adjourned.]
                                  ----------

                  Additional Material Submitted for the Record

     Letters of Support Submitted by Senator Bob Corker for Senate Consent
      to the Ratification of the Marrakesh Treaty and for Enactment of S.
                                      2559

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                __________

     Marrakesh Treaty To Facilitate Access to Published Works for Persons
         who are Blind, Visually Impaired, or Otherwise Print Disabled

        [This document can be found online at the following website:
    https://www.congress.gov/114/cdoc/tdoc6/CDOC-114tdoc6.pdf ]