[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
       
       
       
       
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             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

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                                                                   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 ]