Explanatory Memorandum to COM(2016)596 - Permitted uses of works and other subject-matter protected by copyright and related rights for blind, visually impaired or otherwise print disabled persons - Main contents

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dossier	COM(2016)596 - Permitted uses of works and other subject-matter protected by copyright and related rights for blind, visually impaired or ...
source	COM(2016)596
date	14-09-2016

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

The proposed Directive will bring Union law into line with the EUʼs international commitments under the Marrakesh Treaty to Facilitate Access to Published Works for Persons who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘the Marrakesh Treaty’).

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 between 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 ('beneficiary persons') 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 objective of the proposed Directive is to increase the availability of works and other protected subject-matter, e.g. books, journals, newspapers, magazines and other writings, sheet music and other print material, including in audio form, in formats that are accessible to beneficiary persons. It will do this by ensuring that all beneficiary persons and organisations serving their needs on a non-profit basis can rely on a mandatory and harmonised exception to copyright and related rights within the Union. This will allow to make accessible format copies of otherwise non-accessible works and other subject matter that have already been published or made available. The proposed Directive would amend the existing Union legislative framework accordingly and ensure that the accessible format copies made in one Member State can be disseminated and accessed throughout the Union. With respect to the obligations imposed by the Marrakesh Treaty on the cross-border exchange of accessible format copies between the Union and third countries that are parties to the Treaty, this Directive should be read together with Regulation […].

The proposed Directive 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 Union has adopted a number of Directives in the area of copyright and related rights that provide legal certainty and a high level of protection for rightholders. The rights that are relevant for the proposed Directive are currently harmonised in Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (ʻDirective 2001/29/ECʼ) ⁷ , in Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright in the field of intellectual property ⁸ , in Directive 96/9/EC on the legal protection of databases ⁹ and in Directive 2009/24/EC on the legal protection of computer programs ¹⁰ .

Union law also provides for a number of exceptions or limitations to these rights, which allow, under certain conditions and for the purpose of achieving certain policy objectives, the use of content without the authorisation of the rightholder. The accessibility needs of persons with a disability were recognised in this context, and were provided for notably by Article 5(3)(b) of Directive 2001/29/EC. This provision allows Member States to introduce exceptions or limitations to copyright and related rights for the benefit of persons with disabilities, including print disabilities, in respect of uses which are directly related to the disability, of a non-commercial nature and to the extent required by the specific disability. In accordance with the requirements of the Marrakesh Treaty, the exception introduced by the proposed Directive will be mandatory for Member States, and will apply to rights that have been harmonised at Union level and that are relevant for the making and dissemination of accessible format copies as defined in the Marrakesh Treaty. The exception complements the existing optional exception or limitation provided for in Article 5(3)(b) of Directive 2001/29/EC by introducing a mandatory exception for the benefit of beneficiary persons that will have effect throughout the internal market.

• Consistency with other Union policies

With the adoption of this Directive, the Union aims to ensure that all beneficiary persons have access to books, journals, newspapers, magazines and other writings, sheet music and other print material to substantially the same degree as persons without an impairment or disability, and that the full potential of the internal market can be exploited to achieve this. In this respect, the proposed Directive is consistent with and complements other legislation and initiatives taken at Union level to ʻbuild on the strength of our single market and to fully exploit its potential in all its dimensionsʼ ¹¹ . These include a proposal for a Directive of the European Parliament and of the Council on the accessibility of public sector bodiesʼ websites and one for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services (ʻthe European Accessibility Act proposalʼ). In particular, the European Accessibility Act proposal includes obligations to ensure that e-book services provided in the internal market as of its date of application comply with certain functional requirements so that they are accessible from the moment they are put on the market.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The legal basis for the proposal is Article 114 of the Treaty on the Functioning of the European Union (TFEU).

• Subsidiarity (for non-exclusive competence)

The Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 TFEU. The objective of this proposed Directive is to facilitate access to certain content protected by copyright and related rights for the beneficiary persons of the Marrakesh Treaty within the internal market in an area that is already harmonised by Union law and consequently can only be amended by Union law. In the absence of Union intervention, this objective could not be achieved by Member States. In addition, by reason of scale and effects, this objective can be better achieved at Union level.

• Proportionality

The proportionality of the proposal is ensured as it does not go beyond what is necessary to implement the Union obligations under the Marrakesh Treaty within the Union.

• Choice of the instrument

The choice of a Directive is consistent with previous measures in this area, notably Directive 2001/29/EC which harmonised the rights of authors and other rightholders and introduced an optional exception or limitation for the benefit of people with a disability. The proposed Directive would amend the existing Union legislative framework by providing for a new mandatory exception to the relevant harmonised rights and ensuring that accessible format copies made in one Member State under that exception can be disseminated and accessed throughout the Union. In so doing and by providing for clear definitions, it introduces a uniform approach to the Union's obligations under the Treaty, including the free circulation of accessible format copies in the internal market, providing the beneficiaries of the exception with the necessary legal certainty in undertaking the uses that it covers. At the same time, it allows for a certain margin of manoeuvre for Member States for adapting specific national legislation that might be directly or indirectly affected by the provisions of this Directive, for example in the area of education, healthcare or other social policies.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

The purpose of the proposed Directive 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 Directive, 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 ¹² . 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. These institutional respondents were consistently of the opinion that the Marrakesh Treaty would satisfactorily address these concerns. Rightholders 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 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 ¹³ , which assessed inter alia the application in 11 Member States of the optional exception or limitation for persons with a disability provided for in Article 5(3)(b) of that Directive.

• Impact assessment

The proposed Directive will implement the Marrakesh Treaty in the internal market and aims to bring Union law into line with the Treaty. The Better Regulation Guidelines ¹⁴ do not require an impact assessment to be carried out when the Commission has no discretion over the policy content.

• Fundamental rights

The proposed Directive 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 ('the Charter'). The Directive 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 of the Union's obligations under the Charter ¹⁵ . The proposed Directive is an essential first step in ensuring such access to information and participation in cultural, economic and social life.

The proposal would have limited impact on copyright as a property right as recognised in the Charter (Article 17(2)) ¹⁶ . It should be noted that, at present, all Member States have to some extent made use of the optional copyright exception or limitation provided for in Article 5(3)(b) of Directive 2001/29/EC. The impact of the proposed Directive on copyright as a property right will thus be limited to fully harmonising the existing divergent copyright exceptions or limitations for persons with print disabilities that are in force in the Member States.

4. BUDGETARY IMPLICATIONS

The proposal has no impact on the Union budget.

5. OTHER ELEMENTS

European Economic Area

1. The proposed act relates to an European Economic Area (EEA) matter and it should extend to the EEA.E-

• Implementation plans and monitoring, evaluation and reporting arrangements

Member States will be obliged to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 12 months after its adoption. Member States will be required to communicate to the Commission the provisions introduced to comply with this Directive, and other major legislative provisions adopted in the field covered by this Directive. The Commission will monitor the implementation of the proposed Directive and, in accordance with Better Regulation Guidelines and no sooner than five years after the date of transposition, it shall carry out an evaluation of the Directive 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 Directive. In the same way, it will also carry out an evaluation of Regulation […]. The Commission will also monitor the availability in accessible formats of works and other subject-matter other than those covered by this Directive, and the availability of works and other subject-matter in accessible formats for people with other disabilities, within the Union. The Commission will, by two years after the date of transposition of the proposed Directive, present a report on this matter. That report shall include an assessment on whether expanding the scope of this Directive in accordance with its findings should be considered.

• Explanatory documents

In the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents ¹⁷ , Member States agreed to provide the Commission, when notifying it of the measures taken to transpose a directive, with one or more documents explaining the relationship between the provisions of the directive and corresponding provisions of their national measures, where there is a justification for demanding this additional information. The explanatory documentation will help to ensure that all national legal systems put in place a mandatory exception in line with this Directive in the light of Union obligations under the Marrakesh Treaty.

• Detailed explanation of the specific provisions of the proposal

Article 1 specifies the subject-matter and the scope of the proposal. The proposed Directive will facilitate the use of certain copyright protected content, without the authorisation of the rightholder, for the benefit of persons who are blind, visually impaired or otherwise print disabled.

Article 2 gives the definitions of the terms ʻwork and other subject-matterʼ, ʻbeneficiary personʼ, ʻaccessible format copyʼ and ʻauthorised entityʼ that apply for the purposes of the proposed Directive.

Article 3 provides for a mandatory exception and states the specific permitted uses by beneficiary persons and authorised entities.

Article 4 relates to the circulation of accessible format copies in the internal market. The provision aims to ensure that accessible format copies made under the exception provided for in Article 3 may circulate or be accessed in any Member State.

Article 5 sets out the applicable rules for the protection of personal data.

Article 6 states the amendments to be made to Directive 2001/29/EC to ensure coherence with this Directive.

Article 7 states that the Commission will present a report on the availability in the internal market of works and other subject matter in accessible formats and for persons with disabilities other than those covered by this Directive.

Article 8 sets out the arrangements on the evaluation of the proposed Directive, in accordance with Better Regulation rules.

Article 9 sets the time frame for the transposition of the proposed Directive by the Member States and specifies a number of accompanying obligations that must be met by the Member States, e.g. to notify the Commission of the main provisions that implement the proposed Directive in their national law.

Article 10 specifies the date of the Directive's entry into force and Article 11 states that the Directive is addressed to the Member States.