[Senate Report 115-261]
[From the U.S. Government Publishing Office]
Calendar No. 414
115th Congress } { Report
SENATE
2d Session } { 115-261
======================================================================
MARRAKESH TREATY IMPLEMENTATION ACT
_______
June 4, 2018.--Ordered to be printed
_______
Mr. Grassley, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany S. 2559]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 2559) to amend title 17, United States Code, to
implement the Marrakesh Treaty, and for other purposes, having
considered the same, reports favorably thereon, without
amendment, and recommends that the bill do pass.
CONTENTS
Page
I. Background and Purpose of the Marrakesh Treaty Implementation Act1
II. History of the Bill and Committee Consideration..................4
III. Section-by-Section Summary of the Bill...........................5
IV. Congressional Budget Office Cost Estimate........................7
V. Regulatory Impact Evaluation.....................................8
VI. Conclusion.......................................................8
VII. Changes to Existing Law Made by the Bill, as Reported............8
I. Background and Purpose of the Marrakesh Treaty Implementation Act
A. BACKGROUND
The Marrakesh Treaty to Facilitate Access to Published
Works for Persons by Visually Impaired Persons and Persons with
Print Disabilities (hereinafter the ``Marrakesh Treaty'')
concluded at Marrakesh, Morocco, on June 28, 2013, under the
auspices of the World Intellectual Property Organization. The
Marrakesh Treaty was negotiated to address the global shortage
of books and other texts in accessible formats such as Braille,
large print, specialized digital audio files, and other
alternative formats. The treaty aimed to address this problem
by providing, with appropriate safeguards, that copyright
restrictions should not impede the creation and distribution of
such accessible format copies, and by fostering the exchange of
such copies internationally. The Marrakesh Treaty was signed by
the United States on October 2, 2013.
The Obama Administration submitted the Marrakesh Treaty
package to the U.S. Senate on February 10, 2016, and the
proposed implemention package on February 12, 2016. On February
26, 2016, the Senate Committee on the Judiciary and the
Committee on Foreign Relations hosted a staff briefing where
representatives from the U.S. Department of State, U.S. Patent
and Trademark Office, and U.S. Copyright Office discussed the
treaty and proposed implementing legislation.
Subsequently, staff of the Senate Committee on the
Judiciary and Committee on Foreign Relations encouraged the
National Federation of the Blind, the Library Copyright
Alliance, and the Association of American Publishers to
negotiate and propose language that could be supported by all
interested stakeholders, the copyright community, public
interest groups, the U.S. Patent and Trademark Office and the
U.S. Copyright Office. S. 2559, the Marrakesh Treaty
Implementation Act, is the product of these negotiations,
discussions, and vetting with all the interested parties.
B. PURPOSE
The amendments of title 17 in S. 2559 are intended to
implement the United States obligations under the Marrakesh
Treaty.
1. Revision of section 121 and relevant terminology in both sections
Insofar as section 121 does not explicitly authorize
activities for the purpose of importing or exporting accessible
format copies as permissible under the Marrakesh Treaty, a new
section 121A has been added to address those issues without
substantially changing the terms of section 121 as they apply
to purely domestic activities involving the making,
reproduction and distribution of accessible format copies.
However, several amendments have been made to section 121 in
order to conform certain terms and provisions of section 121 to
the language of the Marrakesh Treaty for purposes of clarity
and consistency.
One such amendment changes the term ``blind or other
persons with disabilities'' and its definition in the previous
section 121(d)(2) to ``eligible person'' as that term is
defined and used in the Marrakesh Treaty to describe the kind
of individuals intended to be the beneficiary recipients and
users of accessible format copies. In making this change for
purposes of clarity and consistency in identically describing
such individuals under both sections, the reference in section
121's prior definition to ``individuals who are eligible or may
qualify in accordance with'' the legislation which authorizes
appropriations for the Library of Congress National Library
Service for the Blind and Physically Handicapped was dropped as
unsuitable for the purpose of defining such individuals in
section 121A because the Marrakesh Treaty contains no similar
requirement for determining whether such individuals ``are
eligible or may qualify'' as such beneficiaries ``in accordance
with'' a particular national law.
Nevertheless, it is the intention and expectation of
Congress that, under the identical defining provisions in
section 121(d)(2) and section 121A(f)(1) and consistent with
the basic concepts, practices, and regulations related to
legislation applicable to the National Library Service for the
Blind and Physically Handicapped, an individual will be
considered to be an ``eligible person'' as defined by section
121(d)(2) and correspondingly section 121A(f)(1) based on
having one or more of the qualifying conditions referenced as
determined by a competent authority possessing experience in
making such determinations. It is also anticipated that
authorized entities, either individually or in coordination,
will rely on competent authorities with appropriate experience
to determine the eligibility of persons the authorized entities
serve under section 121A(c)(1).
The amendment similarly changes the term ``specialized
formats'' and its definition in the previous section 121(d)(2)
to ``accessible formats'' and a definition in keeping with the
Marrakesh Treaty.
While the Marrakesh Treaty applies to copyrighted works in
text or notation, it provides that accessible format copies of
protected works should include ``related illustrations.'' In
keeping with the treaty, it is Congress' intent that accessible
format copies made pursuant to section 121 and/or section 121A
include illustrations that are integrated with the text or
notation being rendered into an accessible format. For example,
where a textbook includes graphs, maps, or tables of
information, the accessible format version of the textbook may
include presentations of that information in as accessible a
way as possible; where a book includes photographs or
illustrations accompanying the text, the accessible format copy
may include suitable descriptions of the photographs and
illustrations. If illustrations, graphs, maps, tables, or
photographs included in a text subject to sections 121 and/or
121A are also separately copyrighted works, they are subject to
section 121 and/or section 121A to the same extent as the
copyrighted works in which they are embodied.
It is understood that authorized entities may introduce
such changes in a copyrighted work as are necessary to make the
work accessible in the alternative format, taking into account
the accessibility needs of the persons concerned. Such changes
include, but are not limited to, differences in format or
presentation. Nonetheless, such changes should not alter the
meaning or substance of the text. It is also Congress' intent
that sections 121 and 121A permit the preparation of an
accessible format copy of part of a work, such as when a
student with a print disability is assigned one or a few
chapters from a book and the authorized entity does not need to
render the entire book in the accessible format. This amendment
of section 121 and the addition of section 121A is not meant to
alter authorized entity practices in this respect.
2. New section 121A
New section 121A is intended to implement the obligations
of the United States under the Marrakesh Treaty to permit the
exportation and importation of accessible format copies of
copyrighted works for use by eligible persons, that is persons
who are blind or other persons with print disabilities.
As such, the terms used in the new section 121A,
particularly ``authorized entity'' and ``eligible persons'',
are intended to apply extraterritorially. The text of the
statute, its references to the Marrakesh Treaty and this
legislative history provide the ``affirmative indication'' of
extraterritorial application that the Supreme Court has looked
for in its review of other Federal legislation. Morrison v.
National Australia Bank Ltd., 561 U.S. 247, 265 (2010). In
establishing section 121A, Congress has taken ``account of the
legitimate sovereign interests of other nations,'' F. Hoffman-
La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004), in
that it is still a matter for other Parties to the Marrakesh
Treaty to establish their own national rules for the
importation or exportation of accessible format copies.
For purposes of the exportation or importation of
accessible format copies under section 121A, section 121A(c)
requires an authorized entity to ``establish and follow its own
practices'' to broadly ensure that its creation, acquisition,
and distribution of accessible format copies serves the
eligible persons that both the statute and the Marrakesh Treaty
are intended to benefit while avoiding infringement of the
works concerned. The practices required under section 121A(c)
can be established by each authorized entity to meet that
provision's stated objectives in whatever manner is suitable to
the authorized entity's own particular circumstances,
including, but not limited to, the amount of section 121A
activity in which it is engaged and the adaptability of its
regular administrative activities. Accordingly, there are no
uniform requirements for the section 121A(c) ``practices''
other than their intended objectives and section 121A neither
creates a new cause of action nor a basis for regulation by any
Federal agency with respect to such authorized activities. An
organization or entity that fails to establish and follow its
own practices under section 121A(c) would not be authorized
under section 121A to conduct the activities in subsections (1)
and (2) of that section. At the same time, in establishing
section 121A, Congress did not conduct a comprehensive analysis
of the title to determine whether the same or similar
activities might be permitted under section 121 or any other
copyright exception or limitation. Finally, an organization
that establishes the required practices to qualify for section
121A is under no obligation to apply the practices to the
organization's other activities in relation to copyrighted
works and section 121A(c) implies no new obligations in
relation to the organization's other activities.
II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
On March 15, 2018, Senator Grassley introduced S. 2559, the
Marrakesh Treaty Implementation Act. Senators Feinstein,
Corker, Menendez, Leahy, Hatch, and Harris were original
cosponsors. The bill was referred to the Committee on the
Judiciary.
On March 18, 2018, the Committee on the Judiciary and the
Committee on Foreign Relations hosted a staff briefing on the
Marrakesh Treaty and the proposed implementing legislation.
Representatives from the U.S. Department of State, the U.S.
Patent and Trademark Office, and the U.S. Copyright Office
presented the Administration's views on both the Marrakesh
Treaty and proposed implementing legislation.
On April 18, 2018, the Committee on Foreign Relations held
a hearing on the Marrakesh Treaty. Testimony was received from
the Honorable Manisha Singh, Assistant Secretary, Bureau of
Economic and Business Affairs, U.S. Department of State; Mr.
Scott Labarre, Legal Counsel, National Federation of the Blind;
Mr. Allan Adler, Executive Vice President and General Counsel,
Association of American Publishers; and Mr. Jonathan Band,
Counsel, Library Copyright Alliance, in support of the
Marrakesh Treaty and S. 2559.
On April 18, 2018, the Committee on the Judiciary held a
hearing on Oversight of the U.S. Patent and Trademark Office.
Testimony was received from Andrei Iancu, Under Secretary of
Commerce for Intellectual Property and Director of the U.S.
Patent and Trademark Office. In response to questions from
Chairman Grassley, Director Iancu testified in support of the
Marrakesh Treaty and S. 2559.
B. COMMITTEE CONSIDERATION
The Committee considered S. 2559 on May 10, 2018. The
Committee voted to report the Marrakesh Treaty Implementation
Act, without amendment, favorably to the Senate. The Committee
proceeded by roll call vote as follows:
Tally: 20 Yeas, 0 Nays, 1 Not Present
Yeas (20): Grassley (R-IA), Hatch (R-UT), Graham (R-SC),
Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Sasse (R-NE), Flake (R-
AZ), Crapo (R-ID), Tillis (R-NC), Kennedy (R-LA), Feinstein (D-
CA), Leahy (D-VT), Durbin (D-IL), Whitehouse (D-RI), Klobuchar
(D-MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Harris
(D-CA).
Nays (0):
Not Present (1): Booker (D-NJ)
III. Section-by-Section Summary of the Bill
Section 1. Short title
This section provides that the legislation may be cited as
the ``Marrakesh Treaty Implementation Act.''
Section 2. Implementation amendments
This section makes adjustments to U.S. copyright law in
order to implement the Marrakesh Treaty.
The section amends section 121(a) of title 17, United
States Code, to broaden the scope of accessible works for
eligible persons to include previously published musical works
that have been fixed in the form of text or notation.
The section defines ``accessible format'' to mean an
alternative manner or form that gives an eligible person access
to the work when the copy or phonorecord in the accessible
format is used exclusively by the eligible person to permit him
or her to have access as feasibly and comfortably as a person
without such disability.
The section defines ``eligible person'' to mean an
individual who, regardless of any other disability, (A) is
blind; (B) has a visual impairment or perceptual or reading
disability that cannot be improved to give visual function
substantially equivalent to that of a person who has no such
impairment or disability and so is unable to read printed works
to substantially the same degree as a person without an
impairment or disability; or (C) is otherwise unable through
physical disability, to hold or manipulate a book or to focus
or move the eyes to the extent that would be normally
acceptable for reading.
This section also creates a new section 121A to deal with
the export and import provisions of the Marrakesh Treaty.
New section 121A(a) provides that notwithstanding the
provisions of sections 106 and 602, it is not an infringement
of copyright for an authorized entity, acting pursuant to this
section, to export copies or phonorecords of a previously
published literary work or of a previously published musical
work that has been fixed in the form of text or notation in
accessible formats to another country when the exportation is
made either to (1) an authorized entity located in a country
that is a Party to the Marrakesh Treaty, or (2) an eligible
person in a country that is a Party to the Marrakesh Treaty, if
prior to the exportation of such copies or phonorecords, the
authorized entity engaged in the exportation did not know or
have reasonable grounds to know that the copies or phonorecords
would be used other than by eligible persons.
New section 121A(b) provides that notwithstanding the
provisions of sections 106 and 602, it is not an infringement
of copyright for an authorized entity or an eligible person, or
someone acting on behalf of an eligible person, acting pursuant
to this section, to import copies or phonorecords of a
previously published literary work or of a previously published
musical work that has been fixed in the form of text or
notation in accessible formats.
New section 121A(c) provides that in conducting activities
under subsection (a) or (b), an authorized entity shall
establish and follow its own practices, in keeping with its
particular circumstances, to (1) establish that the persons the
authorized entity serves are eligible persons; (2) limit to
eligible persons and authorized entities the distribution of
accessible format copies by the authorized entity; (3)
discourage the reproduction and distribution of unauthorized
copies; (4) maintain due care in, and records of, the handling
of copies of works by the authorized entity, while respecting
the privacy of eligible persons on an equal basis with others;
and (5) facilitate effective cross-border exchange of
accessible format copies by making publicly available (A) the
titles of works for which the authorized entity has accessible
format copies or phonorecords and the specific accessible
formats in which they are available and (B) information on the
policies, practices and authorized entity partners of the
authorized entity for the cross-border exchange of accessible
format copies.
New section 121A(d) provides that nothing in this section
shall be construed to establish (1) a cause of action under
this title or (2) a basis for regulation by any Federal agency.
New section 121A(e) provides that nothing in this section
shall be construed to limit the ability to engage in any
activity otherwise permitted under this title.
New section 121A(f) provides that (1) the terms
``accessible format'', ``authorized entity'', and ``eligible
person'' have the meanings given those terms in section 121 and
(2) the term ``Marrakesh Treaty'' means the Marrakesh Treaty to
Facilitate Access to Published Works by Visually Impaired
Persons and Persons with Print Disabilities concluded at
Marrakesh, Morocco, on June 28, 2013.
IV. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S.
2559, the following estimate and comparison prepared by the
Director of the Congressional Budget Office under section 402
of the Congressional Budget Act of 1974:
May 24, 2018.
Hon. Chuck Grassley,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2559, the Marrakesh
Treaty Implementation Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Stephen
Rabent.
Sincerely,
Keith Hall,
Director.
Enclosure.
S. 2559--Marrakesh Treaty Implementation Act
Under current law, copies or phonorecords of a previously
published nondramatic literary work may be reproduced and
distributed in specialized formats for use by people who are
blind or have another disability without infringement of the
work's copyright. S. 2559 would expand that exemption to
include all literary works and previously published musical
works in text or notation. The bill also would expand which
specialized formats could be reproduced and distributed under
the exemption and would expand the groups of people who could
receive such copies. Under certain circumstances, S. 2559 also
would allow the export or import of those copies.
Using information from the Copyright Office, CBO estimates
that implementing the bill would have no significant effect on
the federal budget because that office would not be required to
undertake any rulemakings to implement the bill.
Enacting S. 2559 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 2559 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
CBO has not reviewed S. 2559 for intergovernmental or
private-sector mandates because section 4 of the Unfunded
Mandates Reform Act excludes from the application of that act
any legislative provisions that are necessary for the
ratification or implementation of international treaty
obligations. CBO has determined that the bill falls within that
exclusion.
The CBO staff contact for this estimate is Stephen Rabent.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
V. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 2559.
VI. Conclusion
The Marrakesh Treaty Implementation Act, S. 2559, will help
give people with print disabilities, here in the United States
and all over the world, greater access to books and other texts
in accessible formats such as Braille, large print, specialized
digital audio files, and other alternative formats.
VII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 2559, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
UNITED STATES CODE
TITLE 17--COPYRIGHTS
* * * * * * *
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec.
121. Limitations on exclusive rights: Reproduction for blind or other
people with disabilities.
121A. Limitations on exclusive rights: reproduction for blind or other
people with disabilities in Marrakesh Treaty countries.
* * * * * * *
Sec. 121. Limitations on exclusive rights: Reproduction for blind or
other people with disabilities
(a) Notwithstanding the provisions of section 106, it is
not an infringement of copyright for an authorized entity to
reproduce or to distribute in the United States copies or
phonorecords of a previously published, [nondramatic] literary
work or of a previously published musical work that has been
fixed in the form of text or notation if such copies or
phonorecords are reproduced or distributed in [specialized
formats] accessible formats exclusively for use by [blind or
other persons with disabilities] eligible persons.
(b)(1) Copies or phonorecords to which this section applies
shall--
(A) not be reproduced or distributed in the United
States in a format other than [a specialized format] an
accessible format exclusively for use by [blind or
other persons with disabilities] eligible persons;
(B) bear a notice that any further reproduction or
distribution in a format other than [a specialized
format] an accessible format is an infringement; and
(C) include a copyright notice identifying the
copyright owner and the date of the original
publication.
(2) The provisions of this subsection shall not apply to
standardized, secure, or norm-referenced tests and related
testing material, or to computer programs, except the portions
thereof that are in conventional human language (including
descriptions of pictorial works) and displayed to users in the
ordinary course of using the computer programs.
(c) Notwithstanding the provisions of section 106, it is
not an infringement of copyright for a publisher of print
instructional materials for use in elementary or secondary
schools to create and distribute to the National Instructional
Materials Access Center copies of the electronic files
described in sections 612(a)(23)(C), 613(a)(6), and section
674(e) of the Individuals with Disabilities Education Act that
contain the contents of print instructional materials using the
National Instructional Material Accessibility Standard (as
defined in section 674(e)(3) of that Act), if--
(1) the inclusion of the contents of such print
instructional materials is required by any State
educational agency or local educational agency;
(2) the publisher had the right to publish such print
instructional materials in print formats; and
(3) such copies are used solely for reproduction or
distribution of the contents of such print
instructional materials in [specialized formats]
accessible formats.
(d) For purposes of this section, the term--
(1) ``accessible format'' means an alternative manner
or form that gives an eligible person access to the
work when the copy or phonorecord in the accessible
format is used exclusively by the eligible person to
permit him or her to have access as feasibly and
comfortably as a person without such disability as
described in paragraph (3);
(2) ``authorized entity'' means a nonprofit
organization or a governmental agency that has a
primary mission to provide specialized services
relating to training, education, or adaptive reading or
information access needs of blind or other persons with
disabilities;
[(2) ``blind or other persons with disabilities''
means individuals who are eligible or who may qualify
in accordance with the Act entitled ``An Act to provide
books for the adult blind'', approved March 3, 1931 (2
U.S.C. 135a; 46 Stat. 1487) to receive books and other
publications produced in specialized formats;]
(3) ``eligible person'' means an individual who,
regardless of any other disability--
(A) is blind;
(B) has a visual impairment or perceptual or
reading disability that cannot be improved to
give visual function substantially equivalent
to that of a person who has no such impairment
or disability and so is unable to read printed
works to substantially the same degree as a
person without an impairment or disability; or
(C) is otherwise unable, through physical
disability, to hold or manipulate a book or to
focus or move the eyes to the extent that would
be normally acceptable for reading; and''
(4) ``print instructional materials'' has the meaning
given under section 674(e)(3)(C) of the Individuals
with Disabilities Education Act[; and.
[(4) ``specialized formats'' means--
[(A) braille, audio, or digital text which is
exclusively for use by blind or other persons
with disabilities; and
[(B) with respect to print instructional
materials, includes large print formats when
such materials are distributed exclusively for
use by blind or other persons with
disabilities].
Sec. 121A. Limitations on exclusive rights: reproduction for blind or
other people with disabilities in Marrakesh Treaty
countries
(a) Notwithstanding the provisions of sections 106 and 602,
it is not an infringement of copyright for an authorized
entity, acting pursuant to this section, to export copies or
phonorecords of a previously published literary work or of a
previously published musical work that has been fixed in the
form of text or notation in accessible formats to another
country when the exportation is made either to--
(1) an authorized entity located in a country that is
a Party to the Marrakesh Treaty; or
(2) an eligible person in a country that is a Party
to the Marrakesh Treaty, if prior to the exportation of
such copies or phonorecords, the authorized entity
engaged in the exportation did not know or have
reasonable grounds to know that the copies or
phonorecords would be used other than by eligible
persons.
(b) Notwithstanding the provisions of sections 106 and 602,
it is not an infringement of copyright for an authorized entity
or an eligible person, or someone acting on behalf of an
eligible person, acting pursuant to this section, to import
copies or phonorecords of a previously published literary work
or of a previously published musical work that has been fixed
in the form of text or notation in accessible formats.
(c) In conducting activities under subsection (a) or (b),
an authorized entity shall establish and follow its own
practices, in keeping with its particular circumstances, to--
(1) establish that the persons the authorized entity
serves are eligible persons;
(2) limit to eligible persons and authorized entities
the distribution of accessible format copies by the
authorized entity;
(3) discourage the reproduction and distribution of
unauthorized copies;
(4) maintain due care in, and records of, the
handling of copies of works by the authorized entity,
while respecting the privacy of eligible persons on an
equal basis with others; and
(5) facilitate effective cross-border exchange of
accessible format copies by making publicly available--
(A) the titles of works for which the
authorized entity has accessible format copies
or phonorecords and the specific accessible
formats in which they are available; and
(B) information on the policies, practices,
and authorized entity partners of the
authorized entity for the cross-border exchange
of accessible format copies.
(d) Nothing in this section shall be construed to
establish--
(1) a cause of action under this title; or
(2) a basis for regulation by any Federal agency.
(e) Nothing in this section shall be construed to limit the
ability to engage in any activity otherwise permitted under
this title.
(f) For purposes of this section--
(1) the terms `accessible format', `authorized
entity', and `eligible person' have the meanings given
those terms in section 121; and
(2) the term `Marrakesh Treaty' means the Marrakesh
Treaty to Facilitate Access to Published Works by
Visually Impaired Persons and Persons with Print
Disabilities concluded at Marrakesh, Morocco, on June
28, 2013.
[all]