EU tempted by too many safeguards limiting the scope of blind treaty

As the ratification by the European Union of an international treaty creating an exception to copyright for visually impaired people nears, a leaked text shows that the directive implementing the treaty in the EU might come with safeguards limiting the scope of the treaty, allegedly pushed by the publishing industry. According to the document, on 14 September 2016, the EU Commission submitted a draft proposal for a Directive and a Regulation for the implementation of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The 2013 treaty, managed by the World Intellectual Property Organization entered into force on 30 September 2016.

Draft

Alignment of the definition of authorized entities as in the Marrakesh Treaty in Article 2

– Inclusion of the three-step test provision in Article 3.2a

– Inclusion of obligations on authorized entities in Article 4b (as in Article 5 of the draft regulation)

– Extension of the transposition period from 12 to 24 months (Article 9)

– Introduction of flexibility for member states regarding compensation and commercial availability as reflected in recital 11.

The so-called three-step test refers to Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works. It provides exceptions to the right of reproduction, stating that, “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

Authorized entities and commercial availability

Article 4b (Transparency and exchange of information) of the leaked draft directive asks that member states encourage authorized entities established in their territory to communicate (on a voluntary basis) their names and contact details.

Article 4b further states that member states shall provide the information they have received from those authorized entities to the European Commission, which should make such information publicly available in a central point of information online and keep it up to date.

Article 4.5 of the Marrakesh Treaty states that “It shall be a matter for national law to determine whether limitations or exceptions under this Article are subject to remuneration.”

This language on commercial availability is found under Article 4.4 of the Marrakesh Treaty: National Law Limitations and Exceptions Regarding Accessible Format Copies, as follows: “A Contracting Party may confine limitations or exceptions under this Article to works which, in the particular accessible format, cannot be obtained commercially under reasonable terms for beneficiary persons in that market.

Civil society, visually impaired concern

The Marrakesh Treaty is the first treaty ever to grant exceptions and limitations to copyrights and was strongly resisted during negotiations by some developed countries, and the publishing industry. Some developed countries argued that the treaty would create a precedent and open the way to more requests for exceptions and limitations to copyrights, for example in favors of education, libraries and archives.

The publishing industry was concerned that the exceptions and limitations would lead to piracy since some special format works could be used by non-visually impaired people.