Explanatory Memorandum to COM(2016)595 - Exchange between the EU and third countries of accessible format copies of certain works protected by copyright and related rights for blind or visually impaired persons - Main contents
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| dossier | COM(2016)595 - Exchange between the EU and third countries of accessible format copies of certain works protected by copyright and related ... |
|---|---|
| source | COM(2016)595  |
| date | 14-09-2016 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The proposed Regulation will allow the Union to fulfil an international obligation under the Marrakesh Treaty to Facilitate Access to Published Works for Persons who Are Blind, Visually Impaired, or Otherwise Print Disabled (ʻthe Marrakesh Treatyʼ). The Marrakesh Treaty was adopted in 2013 at the World Intellectual Property Organisation (WIPO) with the aim of facilitating the availability and cross-border exchange of books and other print material in accessible formats around the world. It was signed by the Union 1 in April 2014. The Treaty requires the parties to provide exceptions or limitations to copyright and related rights for the benefit of blind, visually impaired and otherwise print disabled persons and allows for the cross-border exchange of special format copies of books, including audio books, and other print material among the countries that are parties to the Treaty.
The Union has thus made a political commitment to implement the Treaty, which both the Council and the European Parliament have since strengthened. The Commission separately presented a proposal for a Council Decision for the ratification of the Marrakesh Treaty by the Union in October 2014. In May 2015, the Council submitted a request to the Commission under Article 241 of the Treaty on the Functioning of the European Union (TFEU), in which it underlined its full commitment to the rapid entry into force of the Marrakesh Treaty and asked the Commission to submit, without delay, a legislative proposal to amend the Union legal framework in accordance with the Treaty.
The beneficiaries of the Marrakesh Treaty, i.e. persons who are blind, visually impaired, or otherwise print disabled face many barriers to accessing books and other print material protected by copyright and related rights. The availability of books in formats that are accessible to print-disabled persons is estimated to be between 7 % 2 and 20 % 3 despite the fact that digital technology greatly facilitates accessible publishing 4 . Accessible formats include e.g. Braille, large print, e-books and audiobooks with special navigation, audio description and radio broadcasts.
The Marrakesh Treaty obliges the contracting parties, on the one hand, to bring their internal legal provisions into line with the Treaty and, on the other hand, to allow for the cross-border exchange of accessible format copies made under national exceptions or limitations with third countries that are parties to the Treaty. In order to implement the Marrakesh Treaty within the Union, Directive […] requires Member States to introduce a mandatory exception to certain rights of right holders harmonised by Union law for the benefit of beneficiary persons and to ensure cross-border access to special format copies within the internal market. The purpose of the proposed Regulation is to implement the Union’s obligations under the Marrakesh Treaty in respect of the exchange of accessible format copies between the Union and third countries that are parties to the Marrakesh Treaty, for the benefit of beneficiary persons.
This proposed Regulation therefore ensures that accessible format copies that have been made in any Member State in accordance with the national provisions adopted pursuant to Directive […] may be exported to third countries that are parties to the Marrakesh Treaty. In addition, the Regulation allows the import of accessible format copies made in accordance with the Marrakesh Treaty in third countries that are parties to the Treaty, for the benefit of beneficiary persons in the Union. Both beneficiary persons and authorised entities established in the Union should be able to obtain such copies and those copies should be able to circulate in the internal market under the same conditions as accessible format copies made in the Union in accordance with the national provisions adopted pursuant to Directive [...].
The proposed Regulation is also in line with the Union's obligations deriving from the United Nations Convention on the Rights of Persons with Disabilities (ʻthe UNCRPDʼ). The EU has been bound by the UNCRPD since January 2011, pursuant to Council Decision 2010/48/EC 5 . The provisions set out in the UNCRPD have thus become an integral part of the Union's legal order. The right of access to information and the right of people with disabilities to participate in cultural life on an equal basis with others are enshrined in the UNCRPD. Its article 30 requires parties to the convention to take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials. In its Concluding observations on the initial report of the European Union 6 , adopted on 4 September 2015, the United Nations Committee on the Rights of Persons with Disabilities has encouraged the Union to take all appropriate measures to implement the Marrakesh Treaty as soon as possible.
• Consistency with existing policy provisions in the policy area
The proposed Regulation relates to the exchange of accessible format copies of certain copyright protected content with third countries that are parties to the Marrakesh Treaty. Together with Directive […], it therefore serves to implement the Marrakesh Treaty in Union law. The proposed Regulation will be the first piece of EU legislation to introduce provisions specifically on the international exchange of accessible format copies for beneficiary persons.
• Consistency with other Union policies
The proposed Regulation, together with Directive […], fulfils the Union's commitments and obligations relating to the integration of persons with disabilities as set out above. It is consistent with other EU legislation and policy in this area.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for the proposal is Article 207 of the Treaty on the Functioning of the European Union (TFEU).
• Proportionality
The Union is obliged to comply with its international obligations under the Marrakesh Treaty. This Regulation serves to implement the provisions contained in the Treaty on the exchange of accessible format works with third countries that are parties to the Treaty. Such measures can only be taken at Union level as the exchange of accessible format copies of works and other protected subject-matter concerns the commercial aspects of intellectual property. A Regulation is therefore the only appropriate instrument. In accordance with the principle of proportionality, as set out in Article 5 of the Treaty on European Union, this Regulation does not go beyond what is necessary in order to achieve this objective.
• Choice of the instrument
The proposed instrument is a Regulation, in accordance with Article 207 of the TFEU.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The purpose of the proposed Regulation is to fulfil new international obligations as regards Union law. A retrospective evaluation of existing European law in this area is therefore not relevant and not required in this context. Available information on related European legislation was however taken into account, notably the results of public consultations and existing expert input.
• Stakeholder consultations
No specific stakeholder consultation was carried out for the purposes of the proposed Regulation, which implements provisions established at international level. The extensive public consultation on the review of the EU copyright rules carried out by the Commission between December 2013 and March 2014 also included a section on limitations and exceptions for the benefit of persons with disabilities and on the access to and circulation of works in accessible formats, which also referred to the Marrakesh Treaty 7 . Among other aspects, the views expressed by end users, consumers and institutional users (including organisations serving the needs of people with disabilities and libraries) pointed to a diverging scope of national exceptions or limitations, making it difficult to have legal certainty when exporting and importing accessible format copies made under a national copyright exception or limitation. Those institutional respondents were consistently of the opinion that the Marrakesh Treaty would satisfactorily address these concerns. Right holders and collective management organisations generally felt that there were no problems arising from the national implementation of the optional exception or limitation provided for in Union legislation. They also remarked that the existing market mechanisms were effectively addressing the problem of access to works for persons with disabilities. This view was not shared by end users, consumers or institutional users.
• Collection and use of expertise
No expertise was collected specifically in preparation of this proposal. The Commission took into account a 2013 study on the application of Directive 2001/29/EC 8 , which assessed inter alia the application in 11 Member States of the EU optional exception or limitation for persons with a disability in Article 5(3)(b) of that Directive.
• Impact assessment
The proposed Regulation will adress the implications of the Marrakesh Treaty for the exchange of accessible format copies with third countries and aims to bring Union law into line with the Treaty in that respect. The Better Regulation Guidelines 9 do not require an impact assessment to be carried out when the Commission has no discretion over the policy content.
• Fundamental rights
The proposed Regulation supports the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community, as enshrined in Article 26 of the Charter of Fundamental Rights of the European Union (ʻthe Charterʼ). The Regulation also reflects the Union's commitments under the UNCRPD. The UNCRPD guarantees people with disabilities the right of access to information and the right to participate in cultural, economic and social life on an equal basis with others. In view of this, it is justified to restrict the property rights of rightholders in light with the Union's obligations under the Charter 10 .
The proposal would have a limited impact on copyright as property right as recognised in the Charter (Article 17(2)) 11 . In this context, it is noteworthy that Directive […] has introduced a mandatory copyright exception for the benefit of the beneficiary persons of this proposal. The impact of this Regulation will thus be limited to regulating the exchange of accessible format copies with third countries that are parties to the Marrakesh Treaty.
4. BUDGETARY IMPLICATIONS
The proposal has no impact on the Union budget.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
In accordance with Better Regulation Guidelines and no sooner than five years after the date from which the Regulation shall apply, the Commission shall carry out an evaluation of the Regulation and present the main findings to the European Parliament, the Council and the European Economic and Social Committee, accompanied, where appropriate, by proposals for the amendment of the Regulation. In the same way, it will also carry out an evaluation of Directive […].
• Detailed explanation of the specific provisions of the proposal
Article 1 specifies the subject-matter and the scope of the proposal. The proposed Regulation will regulate the exchange of accessible format copies of certain works and other subject-matter protected by copyright or related rights between the Union and third countries, in accordance with the Marrakesh Treaty.
Article 2 gives the definitions of the terms ‘work or other subject-matter’, ‘beneficiary person’, ‘accessible format copy’ and ‘authorised entity’ that apply for the purposes of the proposed Regulation.
Article 3 contains provisions on the export of accessible format copies from the Union to third countries.
Article 4 contains provisions on the import of accessible format copies from third countries to the Union.
Article 5 serves to specify the obligations that authorised entities are required to fulfil when exchanging accessible format copies with third countries.
Article 6 sets out the applicable rules for the protection of personal data.
Article 7 sets out the arrangements on the evaluation of this Regulation, in accordance with Better Regulation rules.
Article 8 specifies the Regulation's entry into force and Article 9 its application in time.