7 Access to published works for the visually
||Legally and politically important |
|Committee's decision||Not cleared from scrutiny; further information requested
|Document details||Draft 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 base||Articles 114, 207 and 218(6)(a)(v) TFEU; QMV
|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");
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 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.
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 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
Decision 2013/275. Back
Where there is shared competence, either the EU or the Member
states individually, may act. Back