Documents considered by the Committee on 26 March 2014 - European Scrutiny Committee Contents


5 Access to published works for the visually impaired

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5076/14

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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
Legal baseArticles 114, 207 and 218(5) TFEU; QMV;—
Document originated20 December 2013
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

Previous Committee ReportNone
Discussion in CouncilNot known
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

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

19   2001/29/EC. Back


 
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