Source: EURLEX
Language: en
Format: md

**Council of the**
**European Union**

**Interinstitutional File:**

**2016/0279 (COD)**

**PROPOSAL**

**Brussels, 16 September 2016**
**(OR. en)**

**12264/16**

**PI 98**

From: Secretary-General of the European Commission,
signed by Mr Jordi AYET PUIGARNAU, Director

date of receipt: 14 September 2016

To: Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Council of
the European Union

No. Cion doc.: COM(2016) 595 final

Subject: Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND
OF THE COUNCIL on the cross-border exchange between the Union and
third countries of accessible format copies of certain works and other
subject-matter protected by copyright and related rights for the benefit of
persons who are blind, visually impaired or otherwise print disabled

Delegations will find attached document COM(2016) 595 final.

Encl.: COM(2016) 595 final

12264/16 LK/np
## DGG 3B EN

EUROPEAN

COMMISSION

Brussels, 14.9.2016
COM(2016) 595 final

2016/0279 (COD)

Proposal for a

**REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**on the cross-border exchange between the Union and third countries of accessible**
**format copies of certain works and other subject-matter protected by copyright and**
**related rights for the benefit of persons who are blind, visually impaired or otherwise**

**print disabled**

# **EN EN**

**EXPLANATORY MEMORANDUM**

**1.** **CONTEXT** **OF** **THE** **PROPOSAL**

**•** **Reasons for and objectives of the proposal**

The proposed Regulation will allow the Union to fulfil an international obligation under the
Marrakesh Treaty to Facilitate Access to Published Works for Persons who Are Blind,
Visually Impaired, or Otherwise Print Disabled (ʻthe Marrakesh Treatyʼ). The Marrakesh
Treaty was adopted in 2013 at the World Intellectual Property Organisation (WIPO) with the
aim of facilitating the availability and cross-border exchange of books and other print material
in accessible formats around the world. It was signed by the Union [1] in April 2014. The Treaty
requires the parties to provide exceptions or limitations to copyright and related rights for the
benefit of blind, visually impaired and otherwise print disabled persons and allows for the
cross-border exchange of special format copies of books, including audio books, and other
print material among the countries that are parties to the Treaty.

The Union has thus made a political commitment to implement the Treaty, which both the
Council and the European Parliament have since strengthened. The Commission separately
presented a proposal for a Council Decision for the ratification of the Marrakesh Treaty by the
Union in October 2014. In May 2015, the Council submitted a request to the Commission
under Article 241 of the Treaty on the Functioning of the European Union (TFEU), in which
it underlined its full commitment to the rapid entry into force of the Marrakesh Treaty and
asked the Commission to submit, without delay, a legislative proposal to amend the Union
legal framework in accordance with the Treaty.

The beneficiaries of the Marrakesh Treaty, i.e. persons who are blind, visually impaired, or
otherwise print disabled face many barriers to accessing books and other print material
protected by copyright and related rights. The availability of books in formats that are
accessible to print-disabled persons is estimated to be between 7 % [2] and 20 % [3] despite the
fact that digital technology greatly facilitates accessible publishing [4] . Accessible formats
include e.g. Braille, large print, e-books and audiobooks with special navigation, audio
description and radio broadcasts.

The Marrakesh Treaty obliges the contracting parties, on the one hand, to bring their internal
legal provisions into line with the Treaty and, on the other hand, to allow for the cross-border
exchange of accessible format copies made under national exceptions or limitations with third
countries that are parties to the Treaty. In order to implement the Marrakesh Treaty within the
Union, Directive […] requires Member States to introduce a mandatory exception to certain
rights of right holders harmonised by Union law for the benefit of beneficiary persons and to
ensure cross-border access to special format copies within the internal market. The purpose of
the proposed Regulation is to implement the Union’s obligations under the Marrakesh Treaty

1 Council Decision 2014/221/EU of 14 April 2014 on the signing, on behalf of the European Union, of
the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually
Impaired, or otherwise Print Disabled (OJ L115, 17.4.2014, p. 1.).
2 LISU for the Royal National Institute of Blind People (RNIB), ʻAvailability of accessible publications 2011 updateʼ, October 2011.
3 Catherine Meyer-Lereculeur ʻException ʻhandicapʼ au droit d’auteur et développement de l’offre de
publications accessibles à l’ère numériqueʼ, May 2013.
4 These figures refer to availability in some but not all accessible formats.

# EN 2 EN

in respect of the exchange of accessible format copies between the Union and third countries
that are parties to the Marrakesh Treaty, for the benefit of beneficiary persons.

This proposed Regulation therefore ensures that accessible format copies that have been made
in any Member State in accordance with the national provisions adopted pursuant to Directive

[…] may be exported to third countries that are parties to the Marrakesh Treaty. In addition,
the Regulation allows the import of accessible format copies made in accordance with the
Marrakesh Treaty in third countries that are parties to the Treaty, for the benefit of beneficiary
persons in the Union. Both beneficiary persons and authorised entities established in the
Union should be able to obtain such copies and those copies should be able to circulate in the
internal market under the same conditions as accessible format copies made in the Union in
accordance with the national provisions adopted pursuant to Directive [...].

The proposed Regulation is also in line with the Union's obligations deriving from the United
Nations Convention on the Rights of Persons with Disabilities (ʻthe UNCRPDʼ). The EU has
been bound by the UNCRPD since January 2011, pursuant to Council Decision 2010/48/EC [5] .
The provisions set out in the UNCRPD have thus become an integral part of the Union's legal
order. The right of access to information and the right of people with disabilities to participate
in cultural life on an equal basis with others are enshrined in the UNCRPD. Its article 30
requires parties to the convention to take all appropriate steps, in accordance with
international law, to ensure that laws protecting intellectual property rights do not constitute
an unreasonable or discriminatory barrier to access by persons with disabilities to cultural
materials. In its Concluding observations on the initial report of the European Union [6], adopted
on 4 September 2015, the United Nations Committee on the Rights of Persons with
Disabilities has encouraged the Union to take all appropriate measures to implement the
Marrakesh Treaty as soon as possible.

**•** **Consistency with existing policy provisions in the policy area**

The proposed Regulation relates to the exchange of accessible format copies of certain
copyright protected content with third countries that are parties to the Marrakesh Treaty.
Together with Directive […], it therefore serves to implement the Marrakesh Treaty in Union
law. The proposed Regulation will be the first piece of EU legislation to introduce provisions
specifically on the international exchange of accessible format copies for beneficiary persons.

**•** **Consistency with other Union policies**

The proposed Regulation, together with Directive […], fulfils the Union's commitments and
obligations relating to the integration of persons with disabilities as set out above. It is
consistent with other EU legislation and policy in this area.

5 Council Decision 2010/48/EC of 26 November 2009 concerning the conclusion, by the European
Community, of the United Nations Convention on the Rights of Persons with Disabilities (OJ L23,
27.1.2010, p. 35).
6 CRPD/C/EU/CO/1, available at:
http://tbinternet.ohchr.org/Treaties/CRPD/Shared%20Documents/EUR/CRPD_C_EU_CO_1_21617_E.
doc.

# EN 3 EN

**2.** **LEGAL** **BASIS,** **SUBSIDIARITY** **AND** **PROPORTIONALITY**

**•** **Legal basis**

The legal basis for the proposal is Article 207 of the Treaty on the Functioning of the
European Union (TFEU).

**•** **Proportionality**

The Union is obliged to comply with its international obligations under the Marrakesh Treaty.
This Regulation serves to implement the provisions contained in the Treaty on the exchange
of accessible format works with third countries that are parties to the Treaty. Such measures
can only be taken at Union level as the exchange of accessible format copies of works and
other protected subject-matter concerns the commercial aspects of intellectual property. A
Regulation is therefore the only appropriate instrument. In accordance with the principle of
proportionality, as set out in Article 5 of the Treaty on European Union, this Regulation does
not go beyond what is necessary in order to achieve this objective.

**•** **Choice of the instrument**

The proposed instrument is a Regulation, in accordance with Article 207 of the TFEU.

**3.** **RESULTS** **OF** **EX-POST** **EVALUATIONS,** **STAKEHOLDER**
**CONSULTATIONS** **AND** **IMPACT** **ASSESSMENTS**

**•** **Ex-post evaluations/fitness checks of existing legislation**

The purpose of the proposed Regulation is to fulfil new international obligations as regards
Union law. A retrospective evaluation of existing European law in this area is therefore not
relevant and not required in this context. Available information on related European
legislation was however taken into account, notably the results of public consultations and
existing expert input.

**•** **Stakeholder consultations**

No specific stakeholder consultation was carried out for the purposes of the proposed
Regulation, which implements provisions established at international level. The extensive
public consultation on the review of the EU copyright rules carried out by the Commission
between December 2013 and March 2014 also included a section on limitations and
exceptions for the benefit of persons with disabilities and on the access to and circulation of
works in accessible formats, which also referred to the Marrakesh Treaty [7] . Among other
aspects, the views expressed by end users, consumers and institutional users (including
organisations serving the needs of people with disabilities and libraries) pointed to a diverging
scope of national exceptions or limitations, making it difficult to have legal certainty when
exporting and importing accessible format copies made under a national copyright exception
or limitation. Those institutional respondents were consistently of the opinion that the
Marrakesh Treaty would satisfactorily address these concerns. Right holders and collective
management organisations generally felt that there were no problems arising from the national

7 Report on the responses to the Public Consultation on the Review of the EU Copyright Rules, July

                                                            [2014, p. 61-63. http://ec.europa.eu/internal_market/consultations/2013/copyright](http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm) rules/index_en.htm

# EN 4 EN

implementation of the optional exception or limitation provided for in Union legislation. They
also remarked that the existing market mechanisms were effectively addressing the problem
of access to works for persons with disabilities. This view was not shared by end users,
consumers or institutional users.

**•** **Collection and use of expertise**

No expertise was collected specifically in preparation of this proposal. The Commission took
into account a 2013 study on the application of Directive 2001/29/EC [8], which assessed _inter_
_alia_ the application in 11 Member States of the EU optional exception or limitation for
persons with a disability in Article 5(3)(b) of that Directive.

**•** **Impact assessment**

The proposed Regulation will adress the implications of the Marrakesh Treaty for the
exchange of accessible format copies with third countries and aims to bring Union law into
line with the Treaty in that respect. The Better Regulation Guidelines [9] do not require an
impact assessment to be carried out when the Commission has no discretion over the policy

content.

**•** **Fundamental rights**

The proposed Regulation supports the right of persons with disabilities to benefit from
measures designed to ensure their independence, social and occupational integration and
participation in the life of the community, as enshrined in Article 26 of the Charter of
Fundamental Rights of the European Union (ʻthe Charterʼ). The Regulation also reflects the
Union's commitments under the UNCRPD. The UNCRPD guarantees people with disabilities
the right of access to information and the right to participate in cultural, economic and social
life on an equal basis with others. In view of this, it is justified to restrict the property rights
of rightholders in light with the Union's obligations under the Charter [10] .

The proposal would have a limited impact on copyright as property right as recognised in the
Charter (Article 17(2)) [11] . In this context, it is noteworthy that Directive […] has introduced a
mandatory copyright exception for the benefit of the beneficiary persons of this proposal. The
impact of this Regulation will thus be limited to regulating the exchange of accessible format
copies with third countries that are parties to the Marrakesh Treaty.

**4.** **BUDGETARY** **IMPLICATIONS**

The proposal has no impact on the Union budget.

8 "Study on the application of Directive 2001/29/EC on copyright and related rights in the information
society", December 2013, De Wolf and partners, available at:
[http://ec.europa.eu/internal_market/copyright/docs/studies/131216_study_en.pdf](http://ec.europa.eu/internal_market/copyright/docs/studies/131216_study_en.pdf), p. 417 et seq.
9 SWD(2015) 111 final.
10 Article 52(1) of the Charter allows for restrictions interfering with the exercise of the freedoms of the
Charter: those restrictions must (i) be provided for by law; and (ii) respect the essence of those rights
and freedoms. In addition, the limitations are (iii) ʻsubject to the principle of proportionalityʼ and ʻmay
be made only if they are necessary and genuinely meet objectives of general interest recognized by the
Union or the need to protect the rights and freedoms of othersʼ.
11 OJ C 83, 30.3.2010, p. 389–403.

# EN 5 EN

**5.** **OTHER** **ELEMENTS**

**•** **Implementation plans and monitoring, evaluation and reporting arrangements**

In accordance with Better Regulation Guidelines and no sooner than five years after the date
from which the Regulation shall apply, the Commission shall carry out an evaluation of the
Regulation and present the main findings to the European Parliament, the Council and the
European Economic and Social Committee, accompanied, where appropriate, by proposals for
the amendment of the Regulation. In the same way, it will also carry out an evaluation of
Directive […].

**•** **Detailed explanation of the specific provisions of the proposal**

Article 1 specifies the subject-matter and the scope of the proposal. The proposed Regulation
will regulate the exchange of accessible format copies of certain works and other subjectmatter protected by copyright or related rights between the Union and third countries, in
accordance with the Marrakesh Treaty.

Article 2 gives the definitions of the terms ‘work or other subject-matter’, ‘beneficiary
person’, ‘accessible format copy’ and ‘authorised entity’ that apply for the purposes of the
proposed Regulation.

Article 3 contains provisions on the export of accessible format copies from the Union to third
countries.

Article 4 contains provisions on the import of accessible format copies from third countries to
the Union.

Article 5 serves to specify the obligations that authorised entities are required to fulfil when
exchanging accessible format copies with third countries.

Article 6 sets out the applicable rules for the protection of personal data.

Article 7 sets out the arrangements on the evaluation of this Regulation, in accordance with
Better Regulation rules.

Article 8 specifies the Regulation's entry into force and Article 9 its application in time.

# EN 6 EN

2016/0279 (COD)

Proposal for a

**REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**on the cross-border exchange between the Union and third countries of accessible**
**format copies of certain works and other subject-matter protected by copyright and**
**related rights for the benefit of persons who are blind, visually impaired or otherwise**
**print disabled**

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 207 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1) Persons who are blind, visually impaired or otherwise print disabled continue to face
many barriers to accessing books and other print material. The need to increase the
number of works and other protected subject-matter in accessible formats available to
those persons and improve their circulation and dissemination has been recognised at
an international level. The Marrakesh Treaty to Facilitate Access to Published Works
for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (ʻthe
Marrakesh Treatyʼ) was signed on behalf of the Union on 30 April 2014 [12] . It requires
contracting parties to provide exceptions or limitations to the exclusive rights of
holders of copyright and related rights for the making and dissemination of copies in
accessible formats of certain works and other subject-matter and for the cross-border
exchange of those accessible format copies. The beneficiaries of the Marrakesh Treaty
are persons who are blind, visually impaired or have a perceptual or reading disability,
including dyslexia, preventing them from reading printed works to the same degree as
persons without such disability, or are unable to hold or manipulate a book or to focus
and move the eyes to the extent that would be normally acceptable for reading due to a
physical disability.

(2) Directive […] endeavours to implement the Union's obligations under the Marrakesh
Treaty in a harmonised manner in order to improve the availability of accessible
format copies for beneficiary persons and their circulation within the internal market.
The Directive requires Member States to introduce a mandatory exception to certain

12 Council Decision 2014/221/EU of 14 April 2014 on the signing, on behalf of the European Union, of
the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually
Impaired, or otherwise Print Disabled. (OJ L115, 17.4.2014, p. 1.)

# EN 7 EN

rights of right holders that are harmonised by Union law. The objectives of this
Regulation are to implement the obligations in the Marrakesh Treaty with respect to
the export and import of accessible format copies for the benefit of beneficiary persons
between the Union and third countries that are parties to the Marrakesh Treaty, and to
lay down the conditions for such export and import. Such measures may only be taken
at Union level as the exchange of accessible format copies of works and other subjectmatter concerns the commercial aspects of intellectual property. A Regulation is the
only appropriate instrument.

(3) The Regulation should ensure that accessible format copies of books, journals,
newspapers, magazines and other writings, sheet music and other print material, which
have been made in any Member State in accordance with the national provisions
adopted pursuant to Directive […] may be exported to third countries that are parties
to the Marrakesh Treaty. Accessible formats include Braille, large print, adapted ebooks, audio books and radio broadcasts. The distribution, communication or making
available of accessible format copies to print disabled persons or to authorised entities
in the third country should only be carried out on a non-profit basis by authorised
entities established in the Union.

(4) This Regulation should also allow for the importation of and access to accessible
format copies made in accordance with the implementation of the Marrakesh Treaty
from a third country, by beneficiary persons in the Union and authorised entities
established in the Union, for the benefit of print-disabled persons. It should be possible
for those accessible format copies to be circulated in the internal market under the
same conditions as accessible format copies made in the Union in accordance with
Directive [...].

(5) In order to improve the availability of accessible format copies and to prevent the
illegal dissemination of works and other subject-matter, authorised entities which
engage in the distribution or making available of accessible format copies should
comply with certain obligations.

(6) Any processing of personal data under this Regulation should respect fundamental
rights, including the right to respect for private and family life and the right to
protection of personal data under Articles 7 and 8 of the Charter of Fundamental
Rights of the European Union and must be in compliance with Directive 95/46/EC of
the European Parliament and the Council [13], which governs the processing of personal
data, as may be carried out by authorised entities within the framework of this
Regulation and under the supervision of the Member Statesʼ competent authorities, in
particular the public independent authorities designated by the Member States.

(7) The United Nations Convention on the Rights of Persons with Disabilities (ʻthe
UNCRPDʼ), to which the EU is a party, guarantees people with disabilities the right of
access to information and the right to participate in cultural, economic and social life
on an equal basis with others. The UNCRPD requires parties to the Convention to take
all appropriate steps, in accordance with international law, to ensure that laws
protecting intellectual property rights do not constitute an unreasonable or
discriminatory barrier to access by persons with disabilities to cultural materials.

13 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the
protection of individuals with regard to the processing of personal data and on the free movement of
such data (OJ L 281, 23.11.1995, p. 31).

# EN 8 EN

(8) This Regulation respects the fundamental rights and observes the principles recognised
in the Charter of Fundamental Rights of the European Union. This Regulation should
be interpreted and applied in accordance with those rights and principles.

HAVE ADOPTED THIS REGULATION:

_Article 1_
_Subject matter and scope_

This Regulation lays down rules on the cross-border exchange of accessible format copies of
certain works and other subject-matter between the Union and third countries that are parties
to the Marrakesh Treaty without the authorisation of the right holder, for the benefit of
persons who are blind, visually impaired or otherwise print disabled.

_Article 2_
_Definitions_

For the purposes of this Regulation the following definitions shall apply:

(1) ‘work or other subject-matter’ means a work in the form of a book, journal,
newspaper, magazine or other writing, including sheet music, and related
illustrations, in any media, including in audio form such as audiobooks, which is
protected by copyright or related rights and which is published or otherwise lawfully
made publicly available;

(2) ‘beneficiary person’ means:

(a) a person who is blind;

(b) a person who has a visual impairment which cannot be improved so as to give
the person visual function substantially equivalent to that of a person who has
no such impairment;

(c) a person who has a perceptual or reading disability, including dyslexia, and is,
as a result, unable to read printed works to substantially the same degree as a
person without an impairment or disability; or

(d) a person who is otherwise unable, due to a physical disability, to hold or
manipulate a book or to focus or move their eyes to the extent that would be
normally acceptable for reading.

(3) ‘accessible format copy’ means a copy of a work or other subject-matter in an
alternative manner or form that gives a beneficiary person access to the work or other
subject-matter, including allowing for the person to have access as feasibly and
comfortably as a person without a visual impairment or any of the disabilities
referred to in paragraph 2;

(4) ‘authorised entity’ means an organisation providing education, instructional training,
adaptive reading or information access to beneficiary persons on a non-profit basis,
as its main activity or as one of its main activities or public-interest missions.

# EN 9 EN

_Article 3_
_Export of accessible format copies to third countries_

An authorised entity established in a Member State may distribute, communicate or make
available to beneficiary persons or to an authorised entity established in a third country that is
a party to the Marrakesh Treaty an accessible format copy made in accordance with the
national legislation adopted pursuant to Directive [...].

_Article 4_
_Import of accessible format copies from third countries_

A beneficiary person or an authorised entity established in a Member State may import or
otherwise obtain or access and thereafter use, in accordance with the national legislation
adopted pursuant to Directive [...], an accessible format copy that has been distributed
communicated or made available to beneficiary persons or to authorised entities, by an
authorised entity in a third country that is a party to the Marrakesh Treaty.

_Article 5_
_Obligations of authorised entities_

1. An authorised entity established in a Member State carrying out the acts referred to
in Articles 3 and 4 shall ensure that:

(a) it distributes, communicates and makes available accessible format copies only
to beneficiary persons or other authorised entities;

(b) it takes appropriate steps to discourage the unlawful reproduction, distribution,
communication and making available of accessible format copies;

(c) it demonstrates due care in, and maintains records of, its handling of works and
other subject-matter and of their accessible format copies; and

(d) it publishes and updates, on its website if appropriate, information on the
manner in which it complies with the obligations laid down in points (a) to (c).

2. An authorised entity established in a Member State carrying out the acts referred to
in Articles 3 and 4 shall provide the following information, on request, to any
beneficiary person or right holder:

(a) the list of works and other subject-matter of which it has accessible format
copies and the available formats; and

(b) the name and details of the authorised entities with which it has engaged in the
exchange of accessible format copies pursuant to Articles 3 and 4.

_Article 6_
_Protection of personal data_

The processing of personal data carried out within the framework of this Regulation shall be
carried out in compliance with Directive 95/46/EC.

# EN 10 EN

_Article 7_

_Review_

No sooner than [five years after the date of application], the Commission shall carry out an
evaluation of this Regulation and present the main findings to the European Parliament, the
Council and the European Economic and Social Committee, accompanied, where appropriate,
by proposals for the amendment of this Regulation.

Member States shall provide the Commission with the necessary information for the
preparation of the evaluation report.

_Article 8_
_Entry into force_

This Regulation shall enter into force on the twentieth day following that of its publication in
the _Official Journal of the European Union_ .

_Article 9_
_Application in time_

This Regulation shall be applicable as of [date of transposition of Directive […]].

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

_For the European Parliament_ _For the Council_
_The President_ _The President_

# EN 11 EN