[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 ]