Copyright, Intellectual Property

A Treaty To Help People Who Are Visually Impaired Is Stalled In The U.S. Senate

Ratification would greatly help millions of blind people. What's the hold up?

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There’s a treaty that, if passed, could immediately make an impact on the lives of the 285 million visually impaired people in the world, including the 10 million visually impaired people in the United States. It can be passed with minimal changes to current United States law — or indeed, as some, including the American Bar Association, would argue, with none at all[1] — and doesn’t have any of the controversial elements that tanked the Convention on the Rights of Persons with Disabilities (CRPD) (which garnered 61 votes to 38, but as a treaty needed a 2/3 majority to pass and therefore fell 5 votes short).

The background: More than four years ago, in June 2013, the international community came together and concluded an historical treaty at the World Intellectual Property Organization (WIPO). That agreement, titled The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty”), was the first of its kind at WIPO, a copyright treaty about limitations and exceptions to intellectual property rights rather than laying the ground for more rights for rightholders.

For several years prior to the adoption of the Marrakesh Treaty, groups including those representing the blind community, libraries, and others, advocated for a binding international legal instrument to address what is known as the “book famine.” Although the United States and several other developed countries have limitations and exceptions in their copyright laws to allow for the creation of accessible formats — such as Braille, audio, text-to-speech, or other formats that render the text accessible to a person who is visually impaired or otherwise unable to read standard printed text — the National Federation of the Blind estimated that no more than 5 percent of all published works are ever created in an accessible format. Of course, that figure is much smaller for many other countries, such as developing countries, that may not have robust limitations and exceptions like those in the United States. In fact, a survey conducted several years before the successful negotiation of the Marrakesh Treaty revealed that only about one-third of countries worldwide had a provision in their copyright law permitting the creation of accessible formats. Thus, some countries’ collections of accessible formats stood at less than 1 percent of what the general public had access to.

To solve this book famine issue, advocates and the member states of WIPO discussed various approaches, ultimately agreeing to a treaty.

The Marrakesh Treaty has two essential features. The first addresses the problem for individual countries domestically, providing for a minimum standard for limitations and exceptions for parties to the treaty to allow the creation and distribution of accessible formats. For the approximately two-thirds of countries without a limitation or exception for those who are visually impaired, to comply with the Marrakesh Treaty, they would need to include some form of exception (the specifics of which can vary from country to country given the considerable flexibility allowed for implementation).

The second feature is a critical one to address the shortfall of accessible formats, which is to allow the cross-border exchange of such formats. Copyright law generally applies domestically, not extraterritorially, so the ability to share accessible formats with other countries allows for better management of resources. Countries that share a common language can benefit from the availability of accessibility of works in another country. Thus, a popular title need not be reproduced in an accessible format in the United States, then again in Canada, again in the United Kingdom, again in Australia, again in New Zealand, and so forth. Creation of accessible formats can be a costly endeavor, so the ability to reduce duplicative efforts is essential.

Although the United States signed the treaty in 2013, signaling an intention to ratify, and the Obama Administration transmitted it to the Senate more than a year-and-a-half ago, the Senate has yet to take any action on it.

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The treaty currently has 33 parties, with at least one country from every region in the world. Considering that the United States has long permitted the creation and distribution of accessible formats for those who are blind or visually impaired — through fair use as well as through a specific limitation in copyright law — I am appalled that we weren’t one of the first countries to act. The Marrakesh Treaty, unlike other human rights treaties that are seen having amorphous standards or goals, provides simple, tangible solutions that we are already doing to a real and narrowly identified problem. While ratification would certainly help those in developing countries who could import accessible formats that already exist in the United States, it would also facilitate importation of accessible books into the United States, including for the millions of Americans who do not speak English as a first language or for those trying to learn a foreign language.

There’s a simple way to help solve the book famine. Ratification would greatly help millions of blind people — both those in developing countries, as well as those domestically — and the Senate should stop ignoring the fact that an easy solution awaits their action. Ratify the treaty already!

[1] Full disclosure: I have been an advocate on this issue for several years. I currently work for an association that has long taken the position that the Marrakesh Treaty can be ratified and implemented without any changes to U.S. law. During the negotiations of the treaty, I attended the WIPO diplomatic conference as an NGO delegate.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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