Braille Monitor                          March 2019

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How the Marrakesh Treaty Came to Be Policy: The Perspective from a Longtime Legislator

by Senator Charles Grassley

Senator Charles GrassleyFrom the Editor: In a preceding article we noted that Senator Charles Grassley was given the Distinguished Legislator Award by the National Federation of the Blind. After that presentation, he was given the microphone and asked to speak on the topic of how the Marrakesh Treaty became the law of the land from the perspective of one of the senators who made it happen. With some modest editing, here are the remarks he made:

Thank you so much for this award and as for those kind remarks, I could’ve listened to those for a long, long time. [applause]

I really appreciate the opportunity to meet with you, and it means a lot to me that you folks have honored me with what you have said is a keynote speech to the Great Gathering-In meeting. I guess it is a great gathering by the large number of people who are here, and I especially want to say hi to the folks who came here from Iowa. A lot of you in this room know about the work of Ken Jernigan, and some of you knew him. It was exactly sixty years ago this month, my first month in the Iowa legislature, that I met Ken Jernigan. [applause] He was very well respected by legislators of both parties, and I don’t know how many times I went through his woodshop, where he was training people to run a circular saw with blinders on. My first thought was, “Ye gods, all I’m going to see here is blood.” But you know, in all of the years being in the legislature and touring there, I was blessed by seeing people who were so proud to be a part of that program and more importantly to be independent. This is what I learned year after year after year in serving my constituents.

So thank you very much for this award, and thank you also for all of the activities we have been involved in all these years. I’ve been asked to speak to you about something you probably know everything about, so what you will be hearing tonight is how it looked from my point of view. I will be talking with you about the Marrakesh Treaty and the implementing legislation.

In the last Congress, when I was the chairman of the Senate Judiciary committee, I worked on this issue. This legislation is something I felt strongly about. We were able to reach an agreement after several years of hard work. The treaty was finally ratified by the Senate, and the implementation legislation passed last year.

As many of you know, the treaty was negotiated and concluded under the auspices of the World Intellectual Property Organization. The treaty was concluded in the place where it gets its name, Marrakesh, Morocco, on June 28 of 2013. It was signed by the United States on October 2, 2013. The intent behind the treaty is to facilitate access to printed works for people with print disabilities. There is a global shortage of print material in accessible formats such as Braille, digital Braille, large print, specialized audio files, and other alternative formats. The treaty helps address this book famine, a problem for blind and visually impaired individuals all over the world.

As you know, the United States enjoys a significant production of accessible format copies for America’s blind people. However, the ability to share such copies across borders expands opportunities for blind people in America and all around the world. This is particularly valuable for blind and visually impaired Americans who read and learn in languages other than English, as well as those who need specialized works such as scholarly texts for graduate work at universities.

The treaty addresses this problem by making clear that copyright protections shouldn’t impede the creation and distribution of such accessible format copies. It does this while including safeguards that protect the rights of material creators and distributors, because we want to encourage innovation and, equally important, the treaty fosters the international exchange of accessible copies of printed materials.

According to the treaty, every country is required to provide an exception or limitation in their national copyright laws for the creation and distribution of accessible format copies for the exclusive use of blind and other print-disabled persons—subject, of course, to international obligations. The treaty also requires countries to permit the exchange across borders of accessible format copies made under such national law exceptions for the use of the blind in other countries that are parties to the treaty. At the same time the treaty provides assurances to authors and publishers that the system won’t expose their published works to misuse or distribution to anyone other than the intended beneficiaries. It’s also very much reiterating the requirements that the cross-border sharing of accessible format copies of works will be limited to certain special cases which don’t conflict with the normal use of the work and also don’t unrealistically prejudice the legitimate interests of the rights holders. Everyone would agree with the Marrakesh Treaty’s worthy goals. Consequently, the treaty and its implementation would have a glide path to getting things done quickly. Right? Well, unfortunately not.

There was much discussion among the stakeholders, but agreement couldn’t be reached on how to implement the treaty. Finally, in February 2016, the previous administration submitted the treaty and its implementation to the United States Senate. But there were still obstacles and no consensus on the legislative package to implement the United States’ obligation under the treaty. Concerns were expressed by stakeholders with the approach taken by the previous administration. There were concerns that there wasn’t enough accountability and that the rules would be gamed. There were concerns that the rules would change and libraries would be burdened with additional regulatory requirements. There were concerns that the interests of rights holders were not adequately protected. Others saw an opportunity to bring issues beyond what the treaty was trying to accomplish. So the bottom line was that with these concerns, the two sides simply couldn’t agree. Senators were concerned with moving the treaty before an agreement had been reached on implementing legislation. You need to have a pretty widespread consensus in order to move a bill in the United States Senate, and I’m sure the last thirty-five days have convinced you of that. [A thirty-five-day government shutdown had been concluded just days before this presentation was given.]

It is sometimes hard to get things done, and of course I was concerned. But this is such a worthy endeavor that the Senate Judiciary Committee and the Senate Foreign Relations Committee, encouraged by your organization, the National Federation of the Blind, along with the Library Copyright Alliance and the Association of American publishers continued to negotiate and propose language that could be supported by all interested stakeholders, including the copyright community, public interest groups, the United States Patent and Trade Office, and the United States Copyright Office. It may sound like your concerns weren’t being taken into consideration, but let me tell you the National Federation of the Blind made sure your concerns were addressed. [applause]

So the National Federation then sprang into action at the federal level and also at the state level. To credit a number of individuals: John Paré, Scott LaBarre, Gabe Cazares, as well as a professor at the Loyola Law school, Prof. Justin Hughes. The National Federation of the Blind was instrumental in bringing all this together. Your engagement helped to creatively reach a consensus not just with respect to the legislative text that implements the treaty but also the important legislative history that goes along with the bill’s committee report so the courts know exactly what we are trying to accomplish. This effort was supported and ultimately succeeded because of the close relationship between the chairman and ranking members of both committees of jurisdiction in the Senate: foreign relations, with jurisdiction over treaties, and judiciary with jurisdiction over copyright law. We worked hand-in-hand on a bipartisan basis (I know you don’t believe that) to move this bill. The staff worked with the House to ensure that there weren’t any problems. The State Department, the US Patent and Trade Office, and the US Copyright Office were informed and were available for consultation to avoid any last-minute hiccups.

So, on March 15, 2018, we introduced Senate Bill 2559, the Marrakesh Treaty Implementation Act, which was the consensus product of these negotiations and the vetting with stakeholders who were the publishers, the libraries, and the print-disabled community who is best represented by the National Federation of the Blind. The bill made modest adjustments to the United States copyright law. The treaty is based on current US copyright law that provides an exception or limitation for the creation and distribution of accessible format copies for the exclusive use of the blind or other print-disabled people. The implementing legislation broadens the scope of accessible works to include previously published music and musical works. It also refines the definition of eligible person and creates a new section in the copyright act to deal with the export and import of accessible format copies. Both the Foreign Relations and Judiciary Committees then moved swiftly and in tandem on the treaty from Foreign Relations and the implementing legislation from the committee on Judiciary.

In May of last year, the Judiciary Committee reported the bill out by a vote that I know you won’t believe. It was twenty to zero. [applause] The Foreign Relations Committee marked up the treaty shortly thereafter.

You know, I can’t help but think of something that I tell my town meetings. When I say that you can’t believe it was a twenty-to-zero vote, this is because everybody thinks that nobody in Washington gets along ever. The people who get along you never read about in the paper [laughter], but every time there’s a disagreement, it is what you read about. If I can brag for a minute, sixty-one bills came out of my committee. Every one of them were bipartisan bills, and thirty-four of them were signed by either a Republican or Democratic president. [applause] Of course, this was one of them, but all you ever heard about that the committee did in the last two or three years was fight about judges.

On January 28, 2018, the treaty and the bill passed the Senate, and on September 25, the House of Representatives passed the bill and the president signed it on October 9, 2018. [applause]

Now if you hadn’t labeled my speech a keynote address, it wouldn’t have to be so long. So I have just a few more words to say. We are waiting for some last steps; the treaty still needs to be deposited in Geneva, and I am hopeful this will happen soon. I cannot stress enough that this treaty and this bill wouldn’t have become law but for the incredible efforts on the part of all of you of the National Federation of the Blind at both the national and state levels. You worked tirelessly to bring together the Association of American Publishers and the Library Copyright Alliance. Your work raised the profile of this issue and gained the attention of your representatives here in the House and the Senate, and we would not be here today without your efforts. I think that this treaty and this bill are a model of how we can accomplish great things [applause] and get legislation done at a time when partisan logjams have taken over a large part of our government.

In conclusion, let me just thank a lot of people. I’m not very good at pronouncing their names, but I assume that they will understand that I was talking about them and that I in no way intended to overlook anyone who participated in this process. Listen now: I get an award, and it’s got all this nice stuff on it that I just love to read, but I hope I say this every time I get an award: we get an award for stuff you folks at the grassroots level work so hard to do, so I think you ought to applaud yourselves for what you did to get this bill passed. [applause] Again, I say thank you.

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