Legally and politically important
Not cleared from scrutiny; further information requested; drawn to the attention of the Business, Energy and Industrial Strategy Committee and the Culture, Media and Sport Committee
(a) Proposal for a Regulation 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; (b) Proposal for a directive on certain permitted uses of 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 and amending Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society
(a) Article 207 TFEU; ordinary legislative procedure; QMV; (b) Article 114 TFEU; ordinary legislative procedure; QMV
Business, Energy and Industrial Strategy
(a) (38079), 12264/16, COM(16) 595;
(b) (38080), 12270/16, COM(16) 596
4.1The Marrakesh Treaty was negotiated by Members of the UN’s World Intellectual Property Organisation (WIPO), and aims to improve access to copyright works for people who are visually impaired or have print disabilities. The Treaty achieves this through the international harmonisation of copyright exceptions (acts that do not need the permission of the copyright owner) allowing for the creation of accessible format versions of copyright works (for example, Braille versions) for the benefit of visually impaired or otherwise print disabled people, under certain conditions, without infringing copyright. The Treaty also provides, in certain circumstances, for the import and export of accessible copies between contracting parties. It has been signed by the EU (and the UK) but its conclusion (ratification) has been held up by a dispute as to the respective competence of the EU and the Member States, on which the judgment of the Court of Justice is awaited.
4.2The proposed Regulation, document (a), would allow the import and export of accessible format copies. The Proposed Directive, document (b), would harmonise the exceptions to copyright found in EU law. These changes would make EU law compatible with the Marrakesh Treaty and thus enable the EU to conclude it.
4.3The Marrakesh Treaty is widely regarded as beneficial and ground-breaking. However its conclusion (ratification) is still mired in legal difficulties, which call into question the legal bases for these proposals. The Court of Justice should resolve these difficulties in a forthcoming formal Opinion which is expected in the next few months. We should be grateful if the Minister (Baroness Neville-Rolfe) would provide a further analysis when the Court has delivered this.
4.4In her helpful Explanatory Memorandum the Minister draws attention to the fact that the proposed Directive would prevent Member States using an option, provided by the Treaty, to limit application of the exemptions to copyright to works which cannot be obtained commercially under reasonable terms.
4.5We retain these documents under scrutiny pending any further developments in the negotiations and pending the publication of the UK Government’s own impact assessment. We also draw these documents to the attention of the Business, Energy and Industrial Strategy Committee and the Culture, Media and Sport Committee as part of the Commissions broader package of copyright proposals.
(a) Proposal for a Regulation 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. : (38079), , COM(16) 595; (b) Proposal for a directive on certain permitted uses of 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 and amending Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society: (38080), , COM(16) 596.
4.6In her Explanatory Memorandum the Minister sets out the policy implications of these proposals:
“The UK has long been committed to improving access to copyright works for visually impaired people both within the UK and internationally, and the Government’s decision to sign the Treaty at the Diplomatic Conference affirms this commitment. Implementation of the Treaty will mean visually impaired people around the world have greater access to books with organisations such as the RNIB (Royal National Institute of Blind People) being able to send copies of works to other countries.
“An important feature of the current UK copyright exceptions for disabled people is that they are limited to situations where they appropriate accessible format work is not available commercially, on reasonable terms. This ensures there is an incentive for publishers to produce own accessible format copies of works, and establishes a well-functioning market in accessible format copies.
“The proposed Directive and Regulation appear to preclude the ability of the UK to limit the creation of accessible format copies to situations where they are not commercially available on reasonable terms. When the Treaty was negotiated, the UK Government was pleased to have secured an optional provision which provides that contracting parties may limit application of the exception to works which cannot be obtained commercially under reasonable terms where they think it is appropriate to do so. Any Contracting Party that avails itself of this limitation must notify WIPO to that effect.”
4.7The impact of the proposals on UK law are stated to be:
“The main copyright legislation in the UK, the Copyright, Designs and Patents Act 1988 (CDPA), already provides exceptions for people with disabilities. The CDPA was amended in 2014 by the Copyright and Rights in Performances (Disability) Regulations 2014. These amendments build on previous copyright exceptions provided in UK law for visually impaired people, and extend the exception to benefit all those whose ‘disability prevents the person from enjoying [a] work to the same degree as a person who does not have that disability’.
“The exceptions in UK law allow for the creation of accessible format copies of copyright works, and recordings, by a disabled person (in lawful possession or use of the whole or part of a work), provided accessible format copies are not available ‘commercially available on reasonable terms by or with the authority of the copyright owner’. UK law also envisages persons, or authorised entities, acting on behalf of the disabled person, creating accessible format copies, again provided such copies are not commercially available. An authorised body is defined as an ‘educational establishment’ or ‘a body that is not conducted for profit’, and is required to keep records of the copies it makes, and the persons to whom such copies are supplied. Supply of copies between authorised entities is also envisaged under the CDPA.
The structure of UK law is already broadly compatible with the provisions of the Marrakesh Treaty.
“The proposed Regulation would have direct effect, but may still require amendment of the CDPA. In particular, Article 4 of the proposed Regulation states that an authorised entity ‘may import or otherwise obtain or access and thereafter use, in accordance with the national legislation pursuant to Directive […], an accessible format copy that has been distributed communicated or made available to beneficiary person or to authorised entities, by an authorised entity in a third country that is party to the Marrakesh Treaty’. It may be necessary for the UK to revisit the definition of ‘authorised entity’ given in the CDPA.”
“The Commission’s proposal appears to preclude Member States from availing themselves of this option. The Government will need to consider the impact of this on the UK’s existing exceptions for disabled people, and whether removal of a commercial availability provision will disincentivise publishers from providing accessible format copies of their works.”
4.8In anticipation of the Government’s own impact assessment she indicates:
“broadly speaking we expect that Blind, Visually Impaired, or Otherwise Print Disabled people and organisations serving their needs on a non-profit basis will benefit via enhanced access to works, with the resulting enhanced benefits to society in terms of cohesion and inclusion. The availability of books in formats that are accessible to print-disabled persons is estimated to be between 7 percent and 20 percent despite advances in technology.
“There may be some limited costs to businesses and rights holders in terms of compliance with new regulations. Furthermore, if the UK is no longer able to limit the creation of accessible format copies to situations where they are not commercially available on reasonable terms, then authors, and commercial publishers, of accessible format copies may be negatively affected, and we will need to consider the impacts of such an approach.”
4 November 2016