5 Access to published works for the visually
impaired
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5076/14
+ ADD 1
COM(13) 926
| Draft Council Decision on the signing of the World Intellectual Property Organisation Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled
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| Legal base | Articles 114, 207 and 218(5) TFEU; QMV;—
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| Document originated | 20 December 2013
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| Deposited in Parliament
Department
Basis of Consideration
| 10 January 2014
Business, Innovation and Skills
Minister's letter of 21 January and EM of 22 January 2014
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| Previous Committee Report | None
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| Discussion in Council | Not known
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
5.1 The Commission is seeking authorisation from
the Council to sign, on behalf of the EU, the World Intellectual
Property Organisation Treaty to Facilitate Access to Published
Works for Persons who are Blind, Visually Impaired, or otherwise
Print Disabled adopted in Marrakesh on 26 June 2013 (the "Marrakesh
Treaty"). The final text of the Treaty is annexed to the
draft Council Decision.[18]
5.2 The purpose of this Treaty is to improve access
to copyright works for people who are visually impaired or have
other print disabilities. This is to be achieved through the international
harmonisation of copyright exceptions (acts that do not need the
permission of the copyright owner) for visually impaired or otherwise
print-disabled people so that accessible versions of copyright
works (for example, Braille versions of books) can be legally
produced under certain conditions without infringing copyright.
The Marrakesh Treaty also provides, in certain circumstances,
for the import and export of accessible copies made under such
exceptions between signatory States.
5.3 The Treaty was negotiated by Member States of
the World Intellectual Property Organization (WIPO) and is the
first multilateral treaty in the field of copyright exceptions.
It is seen by many commentators as an historic agreement and an
important step forward for the rights of disabled people around
the world.
5.4 Whilst many countries (including the UK) already
have effective copyright exceptions for people with visual impairment,
this position is not consistent around the world.
5.5 Many visually impaired or otherwise print-disabled
people — especially those in developing countries —
are unable to access copyright works because no accessible versions
of those works are available. Their domestic laws do not allow
such copies of these works to be legally made without the permission
of the copyright owner who may be unwilling to give permission
or might be untraceable. Furthermore, although accessible copies
may be legally available in one country, export of the accessible
copies could cause an infringement of copyright in the importing
country. This can lead to a situation where visually impaired
and print-disabled people in a country without the relevant copyright
exceptions are not only unable to benefit from access to copies
made in their country for people with such impairment, but are
also prevented from receiving accessible copies already made in
another country.
5.6 Current limitations on the cross-border exchange
of accessible copies have the potential to affect not only those
in developing countries. For example, currently, if an organisation
working on behalf of blind people in, say, Australia produces
an accessible copy of a book using Australia's domestic copyright
exceptions, these copies cannot legally be imported by a sister
organisation in the UK. This can lead to a duplication of work
and the unnecessary use of valuable resources.
5.7 Recognising the need to improve access to books
for visually impaired and print-disabled people around the world,
Members of the UN's World Intellectual Property Organisation (WIPO)
undertook negotiations on a treaty which would address these issues.
A Diplomatic Conference to conclude the Treaty took place in
Marrakesh in June 2013, and the final text was agreed on 26 June.
The UK signed the Marrakesh Treaty at the Conference on 28 June.
The Treaty will come into force following ratification by 20 WIPO
Member States.
The Marrakesh Treaty
5.8 The beneficiaries of the Treaty are persons who
are blind, have a visual impairment or a perceptual or reading
disability, or are otherwise unable, through physical disability,
to hold or manipulate a book or focus or move their eyes to the
extent that would be normally acceptable for reading.
5.9 The Treaty obliges every Contracting Party to
provide, in their national copyright laws, for a limitation or
exception to the right of reproduction, the right of distribution
and the right of making available to the public in order to facilitate
the availability of works in accessible format copies for such
beneficiaries. Contracting Parties may decide to limit such limitations
or exceptions to cases where the accessible format copies are
not commercially available under reasonable terms for the beneficiaries
in their territory.
5.10 In the EU, Article 5(3)(b) of Directive on the
harmonisation of certain aspects of copyright and related rights
in the information society[19]
(the copyright Directive) already provides for an optional exception
or limitation to these rights as regards 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, Article 5(3)(b)
of the copyright Directive is not limited to any particular disability.
In addition, Member States are free to choose whether they implement
this limitation or exception, within the limits imposed by EU
law.
5.11 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. It also specifies that the definition covers audiobooks.
5.12 An "accessible format copy" is a copy
in an alternative manner and form compared to the format in which
the work has been published, which gives beneficiaries access
to the work as comfortably as sighted persons could access it.
The accessible format copy must be used exclusively by beneficiaries
and it must respect the integrity of the original work.
5.13 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.
5.14 Contracting Parties may only allow the exportation
of accessible format copies, if they ensure that their limitations
or exceptions to the rights of reproduction, distribution and
making available to the public are subject to the "three-step
test" requirement either via being a party to the WIPO Copyright
Treaty (WCT) or by ensuring otherwise 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.
5.15 The Treaty clarifies that to the extent a Contracting
Party permits a beneficiary person or an authorised entity to
make an accessible format copy of a work, it should also permit
the importation of such copies.
5.16 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. An equivalent obligation
is already established in the EU under Article 6(4) of the copyright
Directive.
5.17 The Treaty also requires Contracting Parties
to protect the privacy of beneficiary persons and to cooperate
in order to facilitate the cross-border exchange of accessible
format copies. WIPO will establish an information access point
to assist authorised entities in identifying one another. Moreover,
the Treaty encourages authorised entities to provide information
on their policies and practices to interested parties and to members
of the public.
5.18 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 the possibility
of the Contracting Parties to maintain or implement other limitations
and exceptions, outside the scope of the Treaty, for the benefit
of beneficiary persons and persons with other disabilities.
5.19 The Treaty will enter into force once 20 Contracting
Parties have ratified it.
5.20 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 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 Government's view
Minister's letter of 21 January 2014
5.21 The Parliamentary Under-Secretary of State at
the Department for Business, Innovation and Skills (Viscount Younger)
wrote to the Committee on 21 January 2014 as follows:
"I last wrote to you on 13 June 2013 to
update you on the then Treaty negotiations. In your response of
26 June 2013 you asked for confirmation of the Government`s intention
to request that the division of competencies between the EU and
Member States under the Treaty was made clear on the face of the
Council Decision. We propose to raise this with the European Commission.
You also asked for a revised assessment of the impact of the final
Treaty text and this is included in the Explanatory Memorandum.
"In addition to seeking your approval of
the Government position on the Commission proposal I would also
like to provide a further update on the final negotiations.
"The UK delegation was actively involved
in the negotiations, remaining within our cleared negotiating
position, and I am pleased to be able to tell you that, as the
Committee has already noted, the Treaty text was agreed on 26
June and formally adopted on the 27 June as the Marrakesh Treaty
to Facilitate Access to Published Works for Persons who are Blind,
Visually Impaired, or otherwise Print Disabled.
"As I outlined in my previous letter, we
sought to negotiate a Treaty that:
- provides real benefits to visually impaired
people around the world;
- facilitates cross-border exchange of accessible
copies that are made under the Treaty; and
- protects the rights of copyright owners.
"The Government considers that the Treaty
strikes the right balance between meeting the needs of visually
impaired people and ensuring that rights holders' interests are
not damaged. As the Treaty satisfies the UK`s negotiating objectives,
we were able to sign it on 28 June. The initial response to the
Treaty from all stakeholders has been positive.
"The final Treaty text includes a provision
that will make it mandatory for all Member States to provide copyright
exceptions that allow accessible copies of works to be made more
easily and also allow cross-border exchange of such copies, including
direct export from an organisation representing blind people in
one country to individuals requiring accessible copies in another.
"These were key issues for such organisations,
who were concerned that burdensome procedures for cross-border
exchange would dampen the effectiveness of the Treaty.
"The Treaty also includes clear safeguards
which aim to ensure that the Treaty does not undermine the rights
of authors and publishers. In particular the Treaty reaffirms
Contracting Parties` commitments to apply the `three-step test`,
which helps to ensure that copyright exceptions are properly limited
and take into account the interests of copyright owners. It also
provides an option for Contracting Parties to limit their exceptions
for visually impaired people to cases where accessible formats
are not commercially available.
"This is considered to be a historic Treaty,
being the first Treaty on copyright exceptions, and one that also
has a humanitarian element. The UK has long been committed to
improving access to copyright works for visually impaired people
both within the UK and internationally.
"Following EU signature of the Treaty, I
will arrange for the text to be laid before Parliament as a Command
Paper with an Explanatory Memorandum in the usual way."
EXPLANATORY MEMORANDUM OF 22 JANUARY 2014
5.22 The Minister's Explanatory Memorandum summarises
the Government's policy on the EU's accession to the Marrakesh
Treaty.
Legal base
5.23 The Minister explains that the Government considers
the single market legal base of Article 114 TFEU to be appropriate
as it is the basis on which the EU has adopted harmonising copyright
measures affecting the internal market, such as the copyright
Directive. However, the proposal to add the common commercial
legal base of Article 207 TFEU is questionable, he says. For
this legal base to apply, the decision must pursue an objective
with a specific connection to the common commercial policy. The
Minister concedes that it may be difficult to deny that the Marrakesh
Treaty has a link with international trade, but whether this can
be regarded as its primary purpose such as to justify this legal
base is something which the Government will consider further.
The Minister notes that this legal base gives the EU exclusive
external competence over the common commercial policy provisions
within the Treaty.
Impact on UK law
5.24 The Minister explains that the main copyright
legislation in the UK is the Copyright, Designs and Patents Act
1988 (CDPA). It already provides exceptions for visually impaired
persons, which were introduced into UK law by the Copyright (Visually
Impaired Persons) Act 2002. The proposed Decision itself would
not have an impact on UK law as it relates to signature by the
EU of the Treaty. However, implementation of the Treaty provisions
may require amendment to the CDPA in relation to provisions covering
the import and export of accessible works, where it might be necessary
for the Government to introduce a further exception to permit
cross-border exchange of works made under the exception. The
Minister says that this may depend on how the EU proposes to implement
the Treaty.
5.25 The Government is currently in the process of
broadening the visual impairment exceptions in the CDPA to provide
improved access to copyright works for people with all types of
disability. Under both current and proposed UK copyright law the
UK already complies with the majority of the Marrakesh Treaty's
provisions, the Minister says.
Policy Implications
5.26 As he mentioned in his letter, the Minister
says this is an historic copyright treaty because it is the first
on copyright exceptions, and it also has a humanitarian element.
The UK has long been committed to improving access to copyright
works for visually impaired people both within the UK and internationally,
the Minister says, and the Government's decision to sign the Treaty
at the Diplomatic Conference reaffirms this commitment.
5.27 An important feature of the current UK visual
impairment exceptions is that they are limited to situations where
the appropriate accessible format work is not available commercially
on the domestic market. This ensures there is an incentive for
publishers to produce their own accessible format copies. The
Government was pleased to have negotiated an optional provision
in the Treaty text, which will enable contracting parties to apply
such commercial availability restrictions where they think it
is appropriate to do so.
5.28 In this regard, the Treaty provides that Contracting
Parties may limit application of the exception to works which
cannot be obtained commercially under reasonable terms and any
Contracting Party that avails itself of this limitation must notify
WIPO to that effect.
Consultation
5.29 Government consulted key stakeholders, particularly
publishing sector bodies and organisations representing visually
impaired people, throughout the negotiations, which began in 2009.
Most recently, and ahead of the Diplomatic Conference, the Government
held an open meeting on the provisions of the text that remained
to be agreed. Initial responses on the agreed Treaty text from
all stakeholders have also been positive.
5.30 The Government's 2011 Consultation on Copyright
included proposals for the broadening of the UK's visual impairment
exceptions, and these proposals are consistent with the aims and
provisions of the Treaty, the Minister explains.
5.31 Where it is established that the Treaty merits
changes to UK copyright law beyond those which are currently proposed,
the Government will consult further on these changes.
5.32 The Minister says that the Government will consult
the Overseas Territories and Crown Dependencies on whether they
wish the Treaty provisions to extend to them.
Financial Implications
5.33 The Minister does not expect that there will
be any significant financial implications arising from the implementation
of the Treaty. Non-profit organisations, such as charities, may
benefit from provisions permitting the import and export of accessible
copies and their potential effect on the duplication of effort.
Rights holders will not be financially affected by the exception
where accessible copies of a work are commercially available at
a reasonable cost.
Timetable
5.34 The Government has yet to receive an indication
from the Commission on a timetable for adoption of the draft Decision.
Conclusion
5.35 We are grateful to the Minister for his helpful
Explanatory Memorandum, and note the importance the Government
attaches to the Marrakesh Treaty as being the first multilateral
treaty on copyright exceptions, and one that also has a humanitarian
element. For these reasons we report the contents of the Treaty,
and the Government's policy on it, to the House.
5.36 We are conscious, though, of the Government's
reservations about the common commercial policy legal base, which
gives rise to EU exclusive external competence. So, rather than
clear the draft from scrutiny at this stage, we ask the Minister
to write back when the legal bases have been resolved.
5.37 In line with previous requests we further
ask the Minister to ensure that a statement of the division of
competences between the EU and Member States is included as an
annex to the Decision. This makes it significantly easier to see
where the EU exercises external competence in multilateral agreements
and provides legal certainty about where EU and Member State competences
lie.
5.38 In the meantime, the draft Decision remains
under scrutiny.
18 See ADD 1. Back
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2001/29/EC. Back
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