Documents considered by the Committee on 18 March 2015 - European Scrutiny Contents

7 Access to published works for the visually impaired

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; further information requested
Document detailsDraft Council Decision on the conclusion of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled
Legal baseArticles 114, 207 and 218(6)(a)(v) TFEU; QMV

Document numbers

Business, Innovation and Skills

(36437), 14617/14, COM(14) 638

Summary and Committee's conclusions

7.1 This document would enable the EU to conclude (ratify) the Marrakesh Treaty sponsored by the World Intellectual Property Organisation (WIPO). It comes into force once 20 WIPO Parties have ratified it.

7.2 This 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. The UK already complies with the majority of its provisions.

7.3 Whilst the EU has already signed the Treaty, it does give rise to ongoing legal issues: first as to whether the Treaty is entirely a matter of exclusive EU competence or whether the Member States are also entitled to become parties (as participants in a "mixed agreement")[9]; and second as to the appropriate legal basis. Insofar as it is a mixed agreement the Committee have been looking for transparency as to which party (the EU or the individual Member States) are exercising that competence in respect of the specific provisions of the Treaty.

7.4 The Decision on the signature of the Treaty was cleared by the Committee at its meeting of 4 June 2014, having been adopted on 14 April 2014 in the face of a contrary UK vote. In doing so the Committee asked as to the legal consequences of some Member States signing the Treaty but not others. The adopted Decision[10] did not clarify the competence issue and had only an internal market substantive legal basis. It also expressed disappointment at the lack of transparency in the legal texts concerning the exercise of competence by both the EU and the Member States.

7.5 The Committee first considered this draft Decision to conclude the Treaty at its meeting of 26 November 2014. It noted (a) that the Decision on signature stood as an unhelpful precedent on the legal issues; and (b) that the Government approach to the legal basis appeared to have changed, in that it appeared to favour neither a common commercial policy nor an internal market legal basis. We asked that solutions to these issues be pursued vigorously and re-iterated the request, made from our very first consideration of this Treaty, that it be made clear the extent to which the EU and the Member States were exercising competence.

7.6 In her letter of 13 January 2015 the Minister for Intellectual Property reported a broad degree of consensus amongst Member States that the Treaty was a matter of shared competence and also indicated (and repeats in the current letter) that "We will also seek to ensure that the respective competences of the EU and Member States are clearly set out in the text of the Decision".

7.7 The Minister now indicates that the negotiations are at an impasse over both the appropriate legal basis and the division of competence, although the Latvian Presidency is expected to table a revised proposal. She provides some detail as to the Government's view of the division of competence and indicates that the Government would not support the adoption of a Decision in the terms of the current proposal but may wish to support an amended proposal, or abstain, and therefore seeks clearance in view of the forthcoming dissolution of Parliament.

7.8 The Marrakesh Treaty is widely regarded as a ground breaking development for the benefit of disabled people. It is a pity that its implementation continues to be bedevilled by legal difficulties, relating to the appropriate legal basis and the exercise of competence. These difficulties illustrate the importance of addressing the legal aspects of the implementation of external agreements at an early stage and with maximum clarity.

7.9 In relation to any mixed external agreement, competence creep can arise by the Commission claiming extensive exclusive competence (in this case in respect of the common commercial policy) or by giving it the opportunity, through a lack of transparency, to claim that the EU is exercising competence in respect of those parts of the Treaty which are matters of shared competence.[11] This is why we seek clarity that the EU is only acting where it has exclusive competence and also clarity as to where the EU and the Member States are exercising competence.

7.10 In this case we do not consider that the legal issues are sufficiently close to resolution to enable us to clear the document. We therefore retain it under scrutiny and ask the Government to provide an update for our successor Committee in the new Parliament, including on the continued outstanding questions raised by this Committee: namely the Government's analysis of the appropriate legal basis; the steps taken to make it clear in the legislation that the EU is only acting where it has exclusive competence; the steps taken to clarify the parts of the Treaty where the EU is exercising competence and the parts where the Member States are exercising competence; and the legal consequences of some, but not all Member States, ratifying the Treaty.

Full details of the documents: 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: (36437), 14617/14, COM(14) 638.


7.11 As set out in more detail in our first Report on this subject, the Marrakesh Treaty of 26 March 2014 seeks to achieve its objectives through the international harmonisation of copyright exceptions (i.e. acts that do not need the permission of the copyright owner) for the benefit of those who are visually impaired or otherwise print-disabled people to enable accessible versions of copyright works (for example, Braille versions of books) to be produced under certain conditions without infringing copyright. The Marrakesh Treaty also provides for the import and export of accessible copies subject to certain conditions.

The Minister's letter of 10 March 2015

7.12 In addition to the matters set out above the Minister provides some justification for the Treaty being a mixed agreement based on its Articles 3, which establishes who can benefit from the Treaty; and Article 4, which sets out the exceptions to copyright law which must be given:

    "the Government does not consider an exclusive competence approach to conclusion of the Treaty to be appropriate, including such an approach based on the proposed joint Article 207 and Article 114, of the TFEU, legal base. Even if the Council were to accept that some provisions of the Treaty fell within the common commercial policy Article 207 legal base, it is probable that other important aspects of the Treaty, such as Articles 3 and 4, may be considered to fall outside the common commercial policy, and outside the exclusive competence of the EU, so Member States would remain competent to ratify the Treaty in their national capacities as regards those Articles."

7.13 She also re-iterates Government support for the Treaty:

    "The Government remains a strong supporter of the Marrakesh Treaty and is committed to the principle of access to copyright works for visually impaired people. In seeking to ensure that the Treaty enters into force at the earliest possible date, we are committed to ensuring that the aforementioned legal difficulties reach a satisfactory conclusion."  

Previous Committee Reports

Twenty-second Report HC 219-xxi (2014-15), chapter 3 (26 November 2014); and see also, in respect of the Decision to sign the Marrakesh Treaty (35710), 5076/14: First Report HC 219-i (2014-15), chapter 20 (4 June 2014); Forty-fourth Report HC 83-xxxix (2013-14), chapter 5 (26 March 2014).

9   A mixed agreement is one where the EU acts in respect of some provisions and the Members States in respect of others. Back

10   Decision 2013/275. Back

11   Where there is shared competence, either the EU or the Member states individually, may act.  Back

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© Parliamentary copyright 2015
Prepared 27 March 2015