Last Updated on July 9, 2022, 9:43 am ET
Research libraries are committed to making information resources as broadly accessible as possible, regardless of users’ abilities or disabilities, but copyright law has played a role in prohibiting the international exchange of accessible books and other materials. Globally, fewer than 10 percent of publications are available in accessible formats according to the World Intellectual Property Organization (WIPO), yet more than 250 million people are visually impaired. Most books published overseas in languages other than English are not available in the US in accessible formats. Copyright restrictions have exacerbated that access challenge through prohibitions on creating and distributing accessible works, which create additional barriers for people with disabilities to fully participate in classes or scholarly research, or simply read for leisure.
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled seeks to correct the imbalance in copyright to benefit people with disabilities. Countries that join the Marrakesh Treaty must adopt copyright exceptions and limitations allowing authorized entities to create and lend accessible works across borders. Marrakesh is the first international treaty that guarantees the rights of authorized entities and users to create accessible versions of in-copyright books without waiting for permission from publishers.
The Marrakesh Treaty is at the nexus of copyright law and international human rights. The treaty’s preamble references the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which calls for signatory countries to take measures to ensure that people with disabilities can “exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice,” including by “providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost.”
Marrakesh Treaty Implementation Act Provides Legal Framework for Reproducing and Distributing Accessible Works
Under the Marrakesh Treaty, each ratifying nation enacts its own enabling legislation in compliance with the treaty’s requirements. In the US, this meant adopting changes to broaden the scope of Section 121 of the Copyright Act (also known as the Chafee Amendment).
Before the enactment of the Chafee Amendment in 1996, the Library of Congress National Library Service for the Blind and Print Disabled (NLS) had to request permission from publishers and authors to make books and other works accessible. This often resulted in people with disabilities waiting for months to receive materials. Through the Chafee Amendment, Congress stated that it is not an infringement of copyright for authorized entities like libraries to reproduce and distribute works in accessible formats, and clarified that NLS and other libraries are not beholden to a permission culture. The Chafee Amendment also clarified the legal requirement for libraries to determine whether or not an existing accessible version is already available in the market.
In addition to the Chafee Amendment, libraries and other authorized entities may rely on fair use to create and distribute accessible works. Fair use is a legal doctrine codified in the Copyright Act of 1976 that permits the use of copyrighted works in some circumstances, without requiring the user to request or acquire permission from rightsholders. The House of Representatives Committee on the Judiciary Report (No. 94-1476) that accompanied the 1976 Copyright Act noted that making copies accessible “for the use of blind persons” is a fair use, which the Supreme Court affirmed in Sony Corp. of America v. Universal City Studios (also known as the Betamax case). In the 2014 Authors Guild v. HathiTrust decision, the Second Circuit Court referenced this legislative history in concluding that libraries digitizing works, storing digital files, and providing full-text access and search functionality for people with disabilities is a fair use. Critically, the HathiTrust decision clarified that libraries can rely on fair use to justify copies made outside the scope of Chafee, or copies made by unauthorized entities.
In 2018, the US Congress adopted the Marrakesh Treaty Implementation Act (MTIA), which amended Section 121 the Copyright Act to conform with the obligations of the treaty. In particular, the MTIA:
- expanded the types of works that may be copied to include all literary works and musical works fixed in the form of text or notation;
- broadened access to works by clarifying that works may be made available in “accessible formats,” a definition that allows an eligible person to have access to a work that is equivalent to a person without a disability;
- changed language referring to beneficiaries from the original language of “blind or other persons with disabilities” to the more expansive “eligible persons,” conforming the regulatory text with the statutory language in Section 121. “Eligible persons” is inclusive of people who are blind as well as people who have other print disabilities, including physical abilities that impede holding or reading a book; and
- created a new Section 121A that explicitly permits the import and export of copies in accessible formats.
According to NLS Director Jason Broughton, the Library of Congress Technical Corrections Act of 2019 allowed NLS to comply with the Marrakesh Treaty. The NLS Braille and Audio Reading Download (BARD) system now includes more than 1,270 Marrakesh-based works in eight languages, and NLS has made over 101,000 accessible works available through the WIPO Accessible Books Consortium’s Global Book Service.
Advocates Seek to Expand Access to Accessible Works
Despite the global promise of the Marrakesh Treaty and the implementing legislation in the US, blind people cannot always access the electronic literary works they want or need. Most publishers use technological protection measures (TPMs), or digital locks, to prevent users from accessing the content without using publisher-designated e-readers. In this and previous rulemakings, the US register of copyrights has noted the significant role of e-books in improving accessibility for persons who are blind, visually impaired, or print disabled, while acknowledging that TPMs interfere with the use of assistive technologies. Marrakesh Treaty signatories are explicitly required to ensure that legal protection for TPMs “does not prevent beneficiary persons from enjoying the limitations and exceptions provided for in this Treaty.”
In 2003 and every three years since, advocates for the disability community successfully petitioned the Copyright Office for the right to break those digital locks and access e-books using assistive technologies. In 2009, the librarian of Congress renewed the rule despite the register of copyrights’s recommendation against it. In 2021, the librarian of Congress renewed the rule allowing this right for the seventh time; the register’s recommendation noted that the accessibility petitioners pointed out the record underpinning the exemption has stood and has been reestablished since 2003.
This year, the register of copyrights also recommended expanding the regulatory language permitting circumvention of access controls on e-books for accessibility purposes in alignment with Section 121. In a separate petition, advocates won the right for disability services professionals at educational institutions to create accessible versions by adding captioning and/or audio description.
In each triennial rulemaking cycle, petitioners cite the Americans with Disabilities Act (ADA) as evidence of Congress’s intent that US copyright law make appropriate accommodations for the blind and print disabled; the ADA calls for books to be made available in formats accessible to blind and visually impaired people by public libraries and in educational contexts. In the 2021 petition, accessibility advocates—including American Council of the Blind, Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, American Foundation for the Blind, National Federation of the Blind, Library Copyright Alliance, Benetech/Bookshare, and HathiTrust—wrote that making e-books accessible is a quintessential noninfringing use under the HathiTrust decision and the Chafee Amendment as amended by the MTIA.
In 2021, disability advocates petitioned to broaden the category of works that people with disabilities may access, rather than submitting a new petition every three years to renew existing rules—a burdensome process that WIRED magazine called a “fundamental injustice.” The petition called for the Copyright Office to recommend that circumvention of TPMs on any class of copyrighted works for noninfringing accessibility users be allowed, noting that Section 1201 should not needlessly restrict what is already lawful under the US Copyright Act. While the Copyright Office granted a narrow exemption related to video-game controllers, it rejected a general exemption for accessibility uses. The register of copyrights argued that by statute, the 1201 rulemaking process limits exemptions to “particular classes” of works, and that an exemption for all copyrighted works cannot fit within those limits. The register continued that only Congress has the power to alter this statute.
Contracts May Still Prevent Use and Chill Access
The legal foundation for reproducing and distributing literary works in accessible formats for eligible persons is clear in the US Copyright Act under the scope and purpose of Section 121, as well as the protections afforded by fair use. The legislative history of the 1976 Copyright Act, which codified fair use, expressly identifies making a copy of a copyrighted work for the convenience of a blind person as an example of fair use. The US Copyright Office has affirmed “US government policy favoring accessibility” by repeatedly allowing users with disabilities to break TPMs in order to access materials using assistive technology. Internationally, the Marrakesh Treaty reinforces the human-rights imperative for reproducing and distributing accessible works.
Despite all this, publishers still may include conditions and terms in licenses that conflict with the Copyright Act, but that nonetheless may be enforceable under contract law. Through these contractual obligations, publishers effectively extend their copyrights while restricting users’ access to works. For instance, the Association of American Publishers (AAP) requires university disability services officers to seek permission from publishers before providing student access to an accessible work in its AccessText Network. Other publishers may include warnings against modifying or exchanging files without authorization.
Publishers may even use licenses to heighten anxiety over copyright law, which affects the practices of disability services officers (DSOs). The University of Virginia (UVA) Federated Repositories of Accessible Materials for Higher Education (FRAME) project seeks to address the misperceptions driven by anxiety over copyright law that lead to DSOs needlessly seeking permission, destroying remediated texts, or purchasing additional copies of materials.
Since 2020, a task force composed of members from the Association of Research Libraries (ARL) and the Canadian Association of Research Libraries (CARL) has worked to implement the Marrakesh Treaty, creating a pilot for users to request and borrow books within the US and Canada, and across borders. The pilot will also inform how member libraries in the US and Canada—which collectively hold millions of print and electronic books—will implement the treaty. In Canada, the task force is working with authorized entities to understand how the legislation will be operationalized, and what is required for international lending. In the US, ARL will seek to ensure that licenses for electronic content do not waive rights like fair use, and do not require a user to seek permission from a rightsholder for uses that are fair.
In January 2021, ARL joined a coalition of advocates in an amicus brief urging the US Court of Appeals for the District of Columbia Circuit to conclude that Section 1201 of the Digital Millennium Copyright Act (DMCA) violates the First Amendment by chilling fair uses related to accessibility, security, and repair.
For more on the Marrakesh Treaty, listen to the inaugural episode of the ARL Views podcast!
For Further Reading
- “Copyright and Disability” by Blake E. Reid
- The Law and Accessible Texts: Reconciling Civil Rights and Copyrights by Brandon Butler, Prue Adler, and Krista Cox
- “Planning for Digital Accessibility in Research Libraries” by Jonathan Lazar
Thank you to Blake Reid and the ARL/CARL Joint Task Force on Marrakesh Treaty Implementation.