Source: EURLEX
Language: en
Format: md

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

**Interinstitutional File:**

**2016/0279 (COD)**

**Brussels, 23 March 2017**
**(OR. en)**

**7566/17**

**PI 33**
**CODEC 463**

**NOTE**

From: General Secretariat of the Council

To: Delegations

No. prev. doc.: 7342/17

No. Cion doc.: 12264/16

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

              - Draft proposal in view of the consultation of the European Economic
and Social Committee

Delegations will find herewith the draft proposal which will be submitted to the European

Economic and Social Committee for consultation following the change of the legal basis from 207

to 114, as it has been agreed during the Permanent Representatives Committee meeting

of 22 March 2017.

7566/17 CC/np 1
# DGG 3B EN

**ANNEX**

Presidency compromise

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 114

thereof,

Having regard to the proposal from the European Commission,

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

Having regard to the opinion of the European Economic and Social Committee [1]

Acting in accordance with the ordinary legislative procedure,

**1** OJ C,, p. .

7566/17 CC/np 2
# ANNEX DGG 3B EN

Whereas:

(1) 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 [2] . 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.

(1a) The beneficiaries of the Marrakesh Treaty are persons who are blind, who have a visual

impairment which cannot be improved so as to give them visual function substantially

equivalent to that of a person who has no such impairment or who have a perceptual or

reading disability, or who are unable, due to a physical disability, to hold or manipulate a

book or to focus or move the eyes to the extent that would be normally acceptable for reading,

in so far, as a result of such impairments or disabilities, those persons cannot read printed

works to substantially the same degree as persons without such impairments or disabilities.

(1b) 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.

**2** 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.)

7566/17 CC/np 3
# ANNEX DGG 3B EN

(1c) In accordance with the opinion A-3/15 of the European Court of Justice, the 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

provided for by the Marrakesh Treaty " _will have to be implemented within the field_

_harmonised by Directive 2001/29._ _The same is true of the import and export arrangements_

_prescribed by the Marrakesh treaty inasmuch as they are ultimately intended to permit the_

_communication to the public or the distribution, in the territory of a contracting party, of_

_accessible format copies published in another contracting Party, without the consent of the_

_right-holders being obtained._ " [3]

(2) Directive […] aims 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, and requires Member

States to introduce a mandatory exception to certain rights of right holders that are

harmonised by Union law. This Regulation aims to implement the obligations under the

Marrakesh Treaty with respect to the export and import arrangements of accessible format

copies for non commercial purposes 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 in an uniform manner within the field harmonised by Directive

2001/29 and Directive […] in order to ensure that those measures are applied consistently

throughout the internal market and do not jeopardize the harmonisation of exclusive rights

and exceptions therein.

**3** point 112 of the Opinion A-3/15 of the European Court of Justice

7566/17 CC/np 4
# ANNEX DGG 3B EN

(3) The Regulation should ensure that accessible format copies of books, journals, newspapers,

magazines and other writings, notations including sheet music, and other print material,

including in audio form, whether digital or analogue, which have been made in any Member

State in accordance with the national provisions adopted pursuant to Directive […] may be

distributed, communicated, or made available to a beneficiary person or authorised entity in

third countries that are parties to the Marrakesh Treaty. Accessible formats include for

example Braille, large print, adapted e-books, audiobooks and radio broadcasts. Taking into

account the _"non-commercial objective"_ of the Marrakesh Treaty [4], the distribution,

communication to the public 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. Authorised entitities should not be

obliged to make and disseminate accessible format copies.

(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 non commercial purposes for the benefit of print disabled persons. It should be possible

for those accessible format copies to circulate 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, communication to the public or making available of accessible format copies

should comply with certain obligations.

**4** point 90 of the Opinion A-3/15 of the European Court of Justice

7566/17 CC/np 5
# ANNEX DGG 3B EN

(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 ('the

Charter') and must be in compliance with Regulation 2016/679/EC of the European

Parliament and of the Council [5], which govern 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.

(7a) Since the objective of this Regulation, namely to implement the obligations in the Marrakesh

Treaty with respect to the export and import of accessible format copies for non commercial

purposes 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,

cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale

and effects, be better achieved at Union level, the Union may adopt measures in accordance

with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In

accordance with the principle of proportionality as set out in that Article, this Regulation does

not go beyond what is necessary in order to achieve that objective.

**5** Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016
on the protection of natural persons with regards to the processing of personal data and on
the free movement of such data, and repealing Directive 95/46/EC (General Data Protection
Regulation) (OJ L 119, 4.5.2016, p. 1-88).

7566/17 CC/np 6
# ANNEX DGG 3B EN

(8) This Regulation respects the fundamental rights and observes the principles recognised in the

Charter. 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 uniform 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, within the field harmonised by Directive

2001/29 and Directive […] in order not to jeopardize ~~.t~~ he harmonisation of exclusive rights and

exceptions in the internal market.

_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, notation including sheet music, and related illustrations, in any

medium, 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;

7566/17 CC/np 7
# ANNEX DGG 3B EN

(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, and is, as a result, unable to read printed works to substantially the same

degree as a person without such impairment;

(c) a person who has a perceptual or reading disability, and is, as a result, unable to read

printed works to substantially the same degree as a person without such 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 entity that is authorised or recognised by a Member State to

provide education, instructional training, adaptive reading or information access to

beneficiary persons on a non-profit basis. It also includes a public institution or non-profit

organisation that provides the same services to beneficiary persons as one of its primary

activities, institutional obligations or as part of their public-interest missions.

7566/17 CC/np 8
# ANNEX DGG 3B 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

on a non-profit basis 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

may obtain or may 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.

7566/17 CC/np 9
# ANNEX DGG 3B EN

_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 to the public 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) of this paragraph.

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,

authorised entity 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.

7566/17 CC/np 10
# ANNEX DGG 3B 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 and application_

This Regulation shall enter into force on the twentieth day following that of its publication in the

_Official Journal of the European Union_ .

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_

7566/17 CC/np 11
# ANNEX DGG 3B EN