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# 52014PC0638

**Proposal for a COUNCIL DECISION on the conclusion, 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 /\* COM/2014/0638 final - 2014/0297 (NLE) \*/**

  

EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

People who are blind, visually impaired or
otherwise unable to access printed material (‘print-disabled’) must have equal
access to books and printed material in order to fully and effectively
participate in society. The World Health Organisation estimates that 285
million people worldwide are visually impaired: 39 million are blind and 246
million have low vision[1].
The World Blind Union reports that in Europe only 5 % of published books
are available in an accessible format for visually impaired persons, while in
developing countries – where approximately 90 % of visually impaired
people live – this rate is as low as 1 %[2].

Copies of books in accessible formats
(‘accessible-format copies’) are now usually produced and distributed at
national level by specialised organisations, for example libraries for the
blind, under licences or under limitations or exceptions to copyright. However,
the lack of an international legal framework allowing for the cross-border
exchange of accessible formats produced under a limitation or exception leads
to a duplication of effort in making these, even across countries sharing the
same language. This is a problem due to the costs of producing accessible
format copies and the limited resources available to organisations serving the
blind.

Since January 2011 the European Union has
been bound by the United Nations Convention on the Rights of Persons with
Disabilities. This enshrines the right of access to information (Article 21) and
the right of people with disabilities to participate in cultural life on an
equal basis with others (Article 30). The Convention has become an integral
part of the EU legal order. Twenty-five Member States are parties to the
Convention and three countries are finalising ratification.

In 2009, negotiations began in the World
Intellectual Property Organisation (WIPO) on a possible international treaty
introducing limitations and exceptions to copyright for the benefit of people who
are blind, visually impaired or otherwise print-disabled, with the objective of
facilitating the cross-border exchange of books in accessible formats.

On 26 November 2012, the Council adopted a
Decision authorising the Commission to participate in these negotiations, on
behalf of the European Union[3].
The WIPO negotiations were successfully concluded at the diplomatic conference
held in Marrakesh between 17 and 28 June 2013. These led to the adoption of the
Marrakesh Treaty to Facilitate Access to Published Works for Persons who are
Blind, Visually Impaired, or otherwise Print Disabled (‘the Treaty’) on 27 June
2013.

The Treaty establishes a set of
international rules which ensure that there are limitations or exceptions to
copyright at national level for the benefit of people who are blind, visually
impaired, or otherwise print-disabled and enable the cross-border exchange of
accessible-format copies of published works that have been made under an
exception or limitation to copyright in any of the Contracting Parties to the
Treaty.

The Council authorised the signature of the
Treaty on behalf of the European Union[4]
on 14 April 2014.

With this proposal for a Council Decision,
the Commission seeks authorisation from the Council, after obtaining the
consent of the European Parliament, to conclude the Treaty, on behalf of the
European Union.

2.           LEGAL ELEMENTS OF THE
PROPOSAL

2.1 The provisions of the Treaty

The Treaty’s ‘beneficiaries’ are people who
are blind, have a visual impairment or a perceptual or reading disability, or
are otherwise unable, due to physical disability, to hold or manipulate a book,
or focus or move their eyes to the extent that would be normally acceptable for
reading.

The Treaty obliges every Contracting Party
to provide, in their national copyright laws, for a limitation or exception to
the rights of reproduction, distribution and making available to the public, to
facilitate the availability of works in accessible formats for the Treaty’s
beneficiaries[5].
Contracting Parties may decide to limit such limitations or exceptions to cases
where accessible format copies are not commercially available on reasonable
terms to beneficiaries in their territory.

The Treaty defines ‘works’ as literary and
artistic works within the meaning of Article 2(1) of the Berne Convention for
the Protection of Literary and Artistic Works (‘the Berne Convention’), in the
form of text, notation and/or related illustrations, whether published or
otherwise made publicly available in any media. By virtue of an agreed
statement, this also covers audiobooks.

An ‘accessible-format copy’ is a copy in an
alternative manner and form compared to the format in which the work has been
published and which gives beneficiaries access to the work as comfortably as
sighted people could access it. The accessible-format copy must be used
exclusively by beneficiaries and it must respect the integrity of the original
work.

Accessible format copies made under a
limitation or exception to copyright may be exported by ‘authorised entities’,
defined as government institutions or other organisations that provide
education, instructional training, adaptive reading or information access to
blind, visually impaired, or otherwise print-disabled persons on a non-profit
basis. These entities must ensure that they only distribute accessible formats
to beneficiaries, that they discourage the reproduction, distribution and
making available of unauthorised copies and that they maintain due care in, and
records of, their handling of the copies.

Contracting Parties may only allow accessible
format copies to be exported, if they ensure that  relevant limitations or
exceptions to the rights of reproduction, distribution and making available to
the public are subject to the ‘three-step test’. This means that either they
must be a party to the WIPO Copyright Treaty (WCT) or they must otherwise
ensure that the relevant limitations or exceptions are limited to certain
special cases which do not conflict with the normal exploitation of the work
and do not unreasonably prejudice the legitimate interests of the right holder.

The Treaty clarifies that, to the extent a
Contracting Party permits a beneficiary or an authorised entity to make an
accessible-format copy of a work, it should also permit accessible-format
copies to be imported.

Contracting Parties are obliged to take
appropriate measures, if necessary, to ensure that
when they provide adequate legal protection and effective legal remedies
against the circumvention of effective technological measures, this legal
protection does not prevent the beneficiaries from enjoying the limitations and
exceptions provided for in the Treaty.

The Treaty also requires Contracting
Parties to protect the privacy of beneficiaries and to cooperate in order to
facilitate the cross-border exchange of accessible-format copies. WIPO will set
up an information access point to assist authorised entities in identifying one
another with a view to working together. The Treaty also encourages authorised
entities to provide information on their policies and practices to interested
parties and to members of the public.

The Treaty confirms that Contracting
Parties are free to determine the appropriate method of implementing the Treaty
within their own legal system and practice. However, they must comply with
existing international obligations under the Berne Convention, the Agreement on Trade-Related Aspects of Intellectual
Property Rights and the WCT. The Treaty recognises that the Contracting Parties
may maintain or implement other limitations and exceptions for   beneficiaries
and people with other disabilities, outside the scope of the Treaty.

Articles 13 to 22 contain administrative
and procedural provisions that are very similar to those in other WIPO Treaties
in the field of copyright (e.g. WCT).

The Treaty will enter into force once
twenty Contracting Parties have ratified it.

The European Union may become a party to
the Treaty, having made the declaration during the Marrakesh diplomatic conference,
that it is competent in respect of, and has its own legislation binding on all
its Member States on matters covered by this Treaty and that it has been duly
authorised, in accordance with its internal procedures, to become party to the
Treaty. The European Union signed the final act of the diplomatic conference on
28 June 2013 and signed the Treaty on 30 April 2014 in Geneva.

2.2 The legal bases

In light of the Treaty’s subject matter, and
as with Council Decision 2014/221/EU authorising the signature of the Treaty,
the Council’s decision on the conclusion of the Treaty should be based on Articles
114, 207, and 218(6)(a)(v) of the Treaty on the Functioning of the European
Union (TFEU).

The Treaty’s central provisions (Articles 5,
6 and 9) aim to ensure the cross-border exchange of accessible-format copies
between the Contracting Parties of the Treaty, including between the EU and
third countries. This exchange falls under the TFEU provision on the common
commercial policy.

Authors’ rights affected by the exceptions and
limitations required by the Treaty (the right of reproduction, the right of
distribution and the right of communication to the public including the right
of making available) were harmonised at EU level by Articles 2-4 of Directive
2001/29/EC on the harmonisation of certain aspects of copyright and related
rights in the information society[6].
An exhaustive list of exceptions or limitations to those rights is set out in
Article 5(2) and 5(3) of this Directive. Recital 32 makes it clear that Member
States cannot introduce different or additional exceptions to these rights in
their national law. The exceptions or limitations should be exercised in
accordance with Article 5(5) (the ‘three-step test’), also emphasised in
recital 44.

Article 5(3)(b) of Directive 2001/29/EC
provides for an optional exception or limitation to authors’ rights  for uses,
for the benefit of people with any disability, which are directly related to
the disability and are of a non-commercial nature, to the extent required by
the specific disability. Unlike the Treaty, this Article is not limited to any
particular disability and Member States are free to choose whether they
implement this limitation or exception. It is settled case-law that any
discretion which Member States enjoy when they make use of any of the
exceptions or limitations under Article 5 of Directive 2001/29/EC must be
exercised within the limits imposed by EU law[7].

Finally, Article 6 of Directive 2001/29/EC provides
comprehensive legal protection for technological measures used by right holders
and Article 6(4) provides that Member States must ensure that beneficiaries of
certain exceptions or limitations benefit from those exceptions where
technological protection measures are in place, in the absence of voluntary
agreements. Articles 3, 4, 7, 10 and 11 of the Treaty affect these provisions
of EU law.

As a result, it is considered that:

a) the cross-border exchange of
accessible-format copies with third countries is a predominant element of the
Treaty, therefore its relevant articles fall under the common commercial policy
(Article 207 TFEU); and

b) the articles of the Treaty on mandatory
exceptions or limitations fall within the scope of EU law, affect or alter the
scope of the common rules, namely those in Directive 2001/29/EC and in any
event are within an area which is already largely covered by EU rules (Article
114 TFEU)[8].

The Commission is therefore submitting a
proposal for a Council Decision on the conclusion of the Treaty. In accordance
with Article 218(6)(a)(v) of the TFEU, the European Parliament has to give its
consent before the Decision is adopted.

2014/0297 (NLE)

Proposal for a

COUNCIL DECISION

on the conclusion, 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

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Articles 114 and 207, in
conjunction with Article 218(6)(a)(v) thereof,

Having regard to the proposal from the
European Commission,

Having regard to the consent of the
European Parliament[9],

Whereas:

(1)       Since 22 January 2011,
pursuant to Council Decision 2010/48/EC[10],
the European Union has been bound by the United Nations Convention on the
Rights of Persons with Disabilities, whose provisions have become an integral
part of the Union legal order.

(2)       On 26 November 2012, the
Council authorised the Commission to negotiate, on behalf of the European
Union, an international agreement within the World Intellectual Property Organization
on improved access to books for print-impaired persons.

(3)       The negotiations were
successfully concluded at the diplomatic conference held in Marrakesh between 17
and 28 June 2013. The Marrakesh Treaty to Facilitate Access to Published Works
for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled (the ‘Marrakesh
Treaty’) was adopted on 27 June 2013.

(4)       In accordance with Council
Decision 2014/221/EU,[11]
the Marrakesh Treaty was signed, on behalf of the European Union as regards matters
falling within the Union’s competence, on 30 April 2014, subject to its
conclusion at a later date.

(5)       The Marrakesh Treaty
establishes a set of international rules which ensure that there are
limitations or exceptions to copyright at national level for the benefit of people
who are blind, visually impaired, or otherwise print–disabled. The relevant
copyright provisions have been harmonised by Union law, as they affect the
functioning of the internal market.  The Treaty will also enable the cross-border
exchange of copies of published works that have been made in an accessible
format under limitations or exceptions to copyright, and therefore also falls
within the area of commercial policy. The Treaty will facilitate access to
published works for its beneficiaries in and outside the European Union.

(6)       The Marrakesh Treaty
should be approved on behalf of the European Union,

HAS ADOPTED THIS DECISION:

Article 1

The Marrakesh Treaty to Facilitate Access
to Published Works for Persons who are Blind, Visually Impaired, or Otherwise
Print Disabled is hereby approved on behalf of the European Union.

The text of the Marrakesh Treaty is
attached to this Decision.

Article 2

The President of the Council is hereby
authorised to designate the person(s) empowered to deposit, on behalf of the European
Union, the instrument of ratification provided for in Article 19 of the
Marrakesh Treaty in order to express the Union’s consent to be bound by the
Treaty.

Article 3

This Decision shall enter into force on the
day of its adoption.

Done at Brussels,

                                                                       For
the Council

                                                                       The
President

[1]               Fact sheet No 282, June 2012; http://www.who.int.

[2]               http://www.worldblindunion.org.

[3]               Council Decision on the participation of the European
Union in negotiations for an international agreement within the World
Intellectual Property Organisation on improved access to books for print
impaired persons; 16259/12 EU RESTRICTED.

[4]               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.)

[5]               Contracting Parties may also provide for a limitation
or exception to the right of public performance and, according to the attached
agreed statement, to the right of translation to the extent allowed by the
Berne Convention.

[6]               OJ L 167, 22.6.2001, p.
10.

[7]               See e.g. case C-145/10, Eva Maria Painer,
paragraph104.

[8]               See case C-114/12 Commission v. Council judgment of 4
September 2014.

[9]               OJ C , , p. .

[10]             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.)

[11]             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.)

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