Legal context
United Nations Convention on the Rights of Persons with Disabilities
2.Article30(1) of the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26November 2009 (OJ 2010 L23, p.35) (‘the UN Convention’), provides:
‘States Parties recognise the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:
(a)enjoy access to cultural materials in accessible formats;
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Directive 2001/29/EC
3.Recitals 1, 4, 6, 7, 9, 21 and 31 of Directive 2001/29/EC of the European Parliament and of the Council of 22May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L167, p.10) state:
‘(1)The Treaty provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. Harmonisation of the laws of the Member States on copyright and related rights contributes to the achievement of these objectives.
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(4)A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation …
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(6)Without harmonisation at Community level, legislative activities at national level which have already been initiated in a number of Member States in order to respond to the technological challenges might result in significant differences in protection and thereby in restrictions on the free movement of services and products incorporating, or based on, intellectual property, leading to a refragmentation of the internal market and legislative inconsistency. …
(7)The Community legal framework for the protection of copyright and related rights must, therefore, also be adapted and supplemented as far as is necessary for the smooth functioning of the internal market. To that end, those national provisions on copyright and related rights which vary considerably from one Member State to another or which cause legal uncertainties hindering the smooth functioning of the internal market and the proper development of the information society in Europe should be adjusted, and inconsistent national responses to the technological developments should be avoided, whilst differences not adversely affecting the functioning of the internal market need not be removed or prevented.
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(9)Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. …
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(21)This Directive should define the scope of the acts covered by the reproduction right with regard to the different beneficiaries. This should be done in conformity with the acquis communautaire. A broad definition of these acts is needed to ensure legal certainty within the internal market.
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(31)A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter must be safeguarded. … Existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the internal market of copyright and related rights. … In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.’
4.Under Article2 of Directive 2001/29, Member States are to provide for, inter alia, the exclusive right, for authors, to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part, of their works.
5.Article3(1) of that directive provides:
‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’
6.In accordance with Article4(1) of Directive 2001/29:
‘Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.’
7.Paragraphs3 to 5 of Article5 of Directive 2001/29 are worded as follows:
‘3.Member States may provide for exceptions or limitations to the rights provided for in Articles2 and 3 in the following cases:
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(b)uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;
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4.Where the Member States may provide for an exception or limitation to the right of reproduction pursuant to paragraphs2 and 3, they may provide similarly for an exception or limitation to the right of distribution as referred to in Article4 to the extent justified by the purpose of the authorised act of reproduction.
5.The exceptions and limitations provided for in paragraphs1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.’