US provides misleading answer to WIPO questionnaire on export of accessible works under US law

Although domestic law in the US provides for certain exceptions and limitations from infringement of copyright for the production of accessible works for the visually impaired, as well as importation and exportation of these materials, the law is ambiguous and insufficient in allowing non-profit entities or government agencies to export these works.

Officials in the US Library of Congress and US Patent and Trademark Office jointly submitted a response to a WIPO Standing Committee on Copyright and Related Rights Questionnaire. According to WIPO, this questionnaire was designed to explore existing exceptions and limitations that exist under the national laws of Member States with a view to strengthening international understanding of these exceptions. In response to Question 71, which concerns whether any national statute contained "any limitations or exceptions permitting importation and/or exportation of material accessible to persons with print disabilities or visually impaired persons. . .", the US answered in the affirmative. The US response suggests that "authorized entities" defined by 17 USC 121(d)(1) and including non-profit organizations or governmental agencies whose primary mission provides specialized services to access needs of the blind or persons with disabilities, would fall under the US exception that permits importation and exportation of works. The answer to the question notes:

Under 17 U.S.C. 602(a) importation and exportation are considered forms of "distribution" under U.S. copyright law. Section 602(a) gives the copyright holder control of such importation and exportation.

Section 602 itself contains a special set of exceptions (17 U.S.C. 602(a)(3)(A)-(C)) which would permit individuals and authorized entities to engage in many acts of importation to meet the needs of persons with print disabilities.

More importantly, the exclusive right of distribution in 17 U.S.C 106(3) is subject to the limitations and exceptions contained in 17 U.S.C. 107-122, including the exceptions for persons with print disabilities contained in 17 U.S.C. 121. This means that acts of importation and exportation by "authorized entities" (as that term is defined in 17 U.S.C. 121(d)(1)) that meet the conditions of 121 will be exempt from 602(a). (emphasis added)

This suggestion, that US law clearly permits an exception from infringement for importation and exportation for accessible works, is misleading. Section 602(a)(3) is actually ambiguous and may not provide such an exception for exportation of works:

EXCEPTIONS--This subsection does not apply to--
(A) importation or exportation of copies or phonorecords under the authority or for the use of the Government of the United States or of any State or political subdivision of a State, but not including copies or phonorecords for use in schools, or copies of any audiovisual work imported for purposes other than archival use
[...]
(C) importation by or for an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to no more than one copy of an audiovisual work solely for its archival purposes, and no more than five copies of phonorecords of any other work for its library lending or archival purposes...

While the US response to the WIPO questionnaire focused on Section 602(a)(3)(A) as providing an exception allowing "authorized entities" to export accessible works, the plain language of the exception does not use the same phrase. Rather, the statute uses the term "under the authority or for the use of the Government." While one possible interpretation could find that the terms "authorized entities" and "under the authority of" are synonymous, alternate interpretations exist. For example, a publisher could file suit against an exporter of accessible works and reasonably argue that if Congress had intended to exempt an "authorized entity" defined in Section 121(d)(1), Congress would have used the same term ("authorized entity") or, within the text of Section 602(a)(3) made a reference back to Section 121(d)(1).

In fact, the inclusion of Section 602(a)(3)(C) may provide evidence against the US answer to the WIPO questionnaire. This provision explicitly references non-profit organizations, yet only applies to the importation of works rather than exportation.

The US response to the WIPO questionnaire seems to suggest either that the text of the exception is either not ambiguous or that the ambiguity somehow works in favor of the visually impaired. Both readings are incorrect. As noted above, the text of Section 602(a)(3)(A) is, in fact, ambiguous. It would be inadvisable for a non-profit organization to begin exporting works because of the high possibility of infringement and lawsuit by publishers or other rightholders. Non-profit organizations, who are often limited in terms of resources, will not want to engage in activities that would possibly infringe upon copyrights and open themselves up to liability.

The ambiguity also works against the interests of the visually impaired because the US is able to suggest that a treaty for the visually impaired is not necessary because US law allows for importation and exportation of accessible works. The ambiguity provides enough room for the US to argue that, at least from the perspective of those in the US, sufficient limitations and exceptions to copyright and related rights exist to protect accessibility of works for the visually impaired. Essentially, the US disclaims the need for a strong treaty by pointing to one possible theory of Section 602(a)(3) while ignoring other strong interpretations.

Furthermore, the exception provided for in Section 602(a)(3)(A) may even be insufficient to allow a government agency to export accessible works. Although the exception allows exportation of copies "under the authority or for the use of the Government" and could conceivably cover an entity such as the National Library Service for the Blind and Physically Handicapped, appropriations for the Library is governed by 2 U.S.C. 135a which allows funding only "for the use of the blind and for other physically handicapped residents of the United States, including the several States, Territories, insular possessions, and the District of Columbia." The appropriations would therefore prevent the National Library Service from exporting works.

Moreover, the National Library Service Factsheet posted on August 25, 2010 suggests that even aside from the appropriations issue, it could not legally export works to other countries. This factsheet notes that "If the braille or recorded versions of the books were distributed outside the United States, however, such act of distribution would not be covered by the exemption since U.S. copyright law has no extraterritorial effect." This factsheet further highlights the need for a treaty for the visually impaired that contains broad provisions because, despite any existing US exemption, the country importing these works does not recognize exceptions covered by US law.

The ambiguity of the exceptions and limitations in US copyright law, combined with the fact that US laws only apply domestically, illustrates the point that non-profit organizations and even government entities cannot export accessible works without fear of infringement. Only with a treaty containing broad exceptions, in conjunction with amendments to current national laws, will the interests of the visually impaired be sufficiently protected with respect to access to copyrighted works.