The Obama administration has now forwarded two World Intellectual Property Organization treaties to the United States Senate for ratification: the 2012 Beijing Treaty on Audiovisual Performances and the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. If ratified, each treaty would produce significant changes to current global and U.S. copyright law.
The Marrakesh Treaty involves conversion of copyrighted works into formats accessible to the blind and visually impaired – for example, Braille, large print or digitized audio versions. While only a very small percentage (on the order of about 5%) of published works are made available in formats accessible to the visually impaired, most national copyright laws do not currently provide exceptions for third parties to make accessible format versions. Under the Marrakesh Treaty, a copyright exception would be created to facilitate transnational exchange of accessible format versions.
One major point involving the Marrakesh Treaty is how technology protection measures (e.g., digital rights management protections) are addressed. While the Marrakesh Treaty is facially neutral as to impact on anti-circumvention provisions in national copyright laws, the purpose of the treaty implies a “human rights” exclusion to enforcement of such provisions. Copyright owners may be reluctant to see any potential chink in the armor of anti-circumvention be enacted in U.S. copyright law.
The Beijing Treaty creates a new form of copyright protection and establishes an explicit “making available” form of infringement. The new form of protection is the independent right of a performer to protection of their performance (e.g., an actress in a movie would have a right in her performance). This provision codifies the right initially recognized in the 9th Circuit’s Garcia v. Google decision in 2014, a decision subsequently rescinded upon en banc review. The new performance rights would be fully assignable, such that major motion picture studios are unlikely to be impacted. The treaty includes stringent anti-circumvention protections against circumventing a technology protection measure, even in fair use cases such as for commentary or criticism.
The Beijing Treaty also makes explicit a “making available” form of copyright infringement. Under current U.S. copyright law, only affirmative acts such as copying and distribution are explicitly defined as infringement of the copyright owner’s exclusive rights. Some U.S. courts have held that passively making a copyrighted work available for copying by others (e.g., on a website) is nonetheless a form of copyright infringement, as a “distribution.”
Before U.S. copyright laws are modified based on either of these two treaties, the respective treaty must be ratified by two-thirds of the Senate, and implementation legislation must be introduced and passed.