Legally and politically important
Cleared from scrutiny; further information requested
(a) Regulation 2017/1563 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) Directive 2017/1564 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) and (b) Article 114 TFEU, ordinary legislative procedure, QMV
Business, Energy and Industrial Strategy
(a) (38079), 12264/16; (b) (38080), 12270/16, COM(16) 596
10.1These documents bring EU law into line with the Marrakesh Treaty.
10.2As set out in detail in our first Report on this subject, the 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. The Treaty has been concluded (ratified) by the EU. The decision authorising the EU to conclude the Treaty (which was cleared by the Committee) was the subject of a separate report by the Committee.
10.3Two EU instruments give effect to the Treaty within the EU: a Regulation and a Directive. The Regulation, document (a), allows the import and export of accessible format copies between the EU and third Countries party to the Marrakesh Treaty. The Directive, document (b), harmonises the exceptions to copyright found in EU law. These changes make EU law compatible with the Marrakesh Treaty and thus have enabled the EU to conclude the Treaty.
10.4Before the Committee was established after the Election, the Minister wrote to state that the Government had over ridden the scrutiny reserve on both the Regulation and Directive by voting in Council on 17 July 2017 in favour of the Proposals. The reason given being “the importance of the Marrakesh Treaty on both a humanitarian and diplomatic level”.
10.5The Regulation has been applicable since 12 October. Member States are under an obligation to transpose the Directive by 11 October 2018.
10.6We thank the Minister for the helpful updates and his and his predecessor’s explanations of the reasons for overriding the scrutiny reservation. The Committee notes:
a)the Government’s intention to implement the Directive by the transposition deadline of 18 October 2018;
b)the text of the Directive as adopted does not permit a ‘commercial availability’ limitation in relation to the creation, under an exception to copyright, of accessible format copies for the visually impaired;
c)the Government’s intention to consult prior to implementation of the Directive on the impact of removing the ‘commercial availability’ limitation in domestic law;
d)the Government’s intention to consult on the scope and options to safeguard commercial markets (in the absence of a ‘commercial availability’ limitation in domestic law’), for example, by means of a scheme to compensate for any harm removal of the current limitation in domestic law may cause to rights holders; and
e)the Government’s desire to “ensure the benefits of the Treaty, including the cross-border exchange of accessible format copies, continues during this [the transitional/implementation] period“.
10.7The Committee clears these documents but asks the Minister the following:
a)in the light of the recent clarification by the EU of the position as it currently stands regarding application of the Directive and Regulation to the UK on exit (which, in particular, states that the UK will not benefit from the exchange of assessible format copies with third countries in the absence of the UK becoming a party to the Marrakesh Treaty), what steps the UK intends to take to “ensure the benefits of the Treaty are maintained in the UK”, in particular as regards exchange of assessible format copies with third countries; and
b)whether it is the Government’s intention to seek EU permission to ratify and bring the Treaty into force on UK exit.
c)We also ask to be kept informed of the results of the proposed consultation and the Government’s assessment of the impact of the removal of the limitation on ‘commercial availability’ in domestic law; in particular, if it is decided to create a compensation scheme in domestic law for the benefit of rightsholders, how it is intended that scheme will be funded.
(a) Regulation 2017/1563 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), 12264/16, COM(16) 595; (b) Directive 2017/1564 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), 12270/16, COM(16) 596.
10.8As 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 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.
10.9The Regulation and Directive implementing the Marrakesh Treaty were adopted on 13 September 2017 and the decision to conclude the Treaty was adopted by the Council on 15 February 2018. The UK voted in favour of the Proposals overriding the scrutiny reserve in the Committee’s absence. The then Minister explained the reasons for the override in his letters of 30 October and 28 November 2018:
“On 17 July 2017, due to the Committee’s absence, the Committee had not responded to my request of 3 July 2017 to lift its scrutiny reserve. As discussed above, given the importance of the Marrakesh Treaty on both a humanitarian and diplomatic level, I took the decision to override the Scrutiny Reserve Resolution and vote in favour. To have abstained or voted against could have called into question the Government’s commitment to the aims of the Treaty, and suggested that it had outstanding objections to the substance of the implementing legislation, which it did not.”
10.10The Minister wrote to the Committee on 3 July and 7 August to update the Committee on the progress of negotiations. In his letter of 7 August, the Minister set out the Government’s position:
“During the course of negotiations, groups representing visually impaired people argued that commercial availability restrictions would place unreasonable burdens on organisations which make accessible format copies, and that there was little evidence that such restrictions were needed to protect commercial markets. Reflecting this view, the agreed texts do not provide flexibility for Member States to maintain commercial availability clauses in their national exceptions. They do, however, provide other market safeguards, including:
“a. the option for Member States to provide schemes to compensate for any harm the exception may cause for rights holders;
“b. the requirement that domestic exceptions of Member States apply only in certain special cases which do not conflict with the normal exploitation of the work, and do not unreasonably prejudice the legitimate interest of the right holder;
“c. an obligation on the European Commission to assess any negative impact the proposals have on commercial markets, 6 years after the date of entry into force.
“On implementing the Directive and Regulation, we will consult on the impact of removing the commercial availability provision in UK law, and on the scope and options to safeguard commercial markets.
“The compromise texts for the draft Regulation and Directive do not provide full flexibility for Member States, but allow Member States to provide certain market safeguards. One of these safeguards is the option for Member States to provide schemes to compensate rightsholders for any harm the exception may cause to them. The UK does not currently take this approach in its disability exception, as it considers rightholders’ interests to be sufficiently protected via a number of safeguards, including a commercial availability clause. The UK’s future approach to compensation schemes will depend on the outcome of the consultation, including potential impacts from the removal of the commercial availability clause.
“We intend to implement on the transposition deadline set by the Directive, which is expected to be before the UK exits the EU.”
Seventeenth Report HC 71–xv (2016–17)(2 November 2016).
145 301–xiii (2018–19) chapter 4 (7 February 2018).
146 By letter of 7 August 2017.
147 Letter from Jo Johnson MP to Sir William Cash of 28 November 2017.
148 of 19 March 2018 to Sir William Cash from Sam Gyimah MP.
149 Commission notice to Stakeholders of 28 March 2018 “Withdrawal of the United Kingdom and EU rules in the field of copyright”.
150 of 19 March 2018 to Sir William Cash from Sam Gyimah MP.
151 See paragraph 43 of which refers to the potentially negative impact of this on authors and commercial publishers of accessible format copies.
Published: 1 May 2018