OPINION 3/15

The Marrakesh Treaty

8.According to the preamble to the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled (the ‘Marrakesh Treaty’):

‘The Contracting Parties,

[(1)]Recalling the principles of non-discrimination, equal opportunity, accessibility and full and effective participation and inclusion in society, proclaimed in the Universal Declaration of Human Rights and the [UN Convention],

[(2)]Mindful of the challenges that are prejudicial to the complete development of persons with visual impairments or with other print disabilities, which limit their freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds on an equal basis with others, including through all forms of communication of their choice, their enjoyment of the right to education, and the opportunity to conduct research,

[(3)]Emphasizing the importance of copyright protection as an incentive and reward for literary and artistic creations and of enhancing opportunities for everyone, including persons with visual impairments or with other print disabilities, to participate in the cultural life of the community, to enjoy the arts and to share scientific progress and its benefits,

[(4)]Aware of the barriers of persons with visual impairments or with other print disabilities to access published works in achieving equal opportunities in society, and the need to both expand the number of works in accessible formats and to improve the circulation of such works,

[(5)]Taking into account that the majority of persons with visual impairments or with other print disabilities live in developing and least-developed countries,

…

[(7)]Recognising that many Member States have established limitations and exceptions in their national copyright laws for persons with visual impairments or with other print disabilities, yet there is a continuing shortage of available works in accessible format copies for such persons, and that considerable resources are required for their effort of making works accessible to these persons, and that the lack of possibilities of cross-border exchange of accessible format copies has necessitated duplication of these efforts,

[(8)]Recognising both the importance of rightholders’ role in making their works accessible to persons with visual impairments or with other print disabilities and the importance of appropriate limitations and exceptions to make works accessible to these persons, particularly when the market is unable to provide such access,

[(9)]Recognising the need to maintain a balance between the effective protection of the rights of authors and the larger public interest, particularly education, research and access to information, and that such a balance must facilitate effective and timely access to works for the benefit of persons with visual impairments or with other print disabilities,

[(10)] Reaffirming the obligations of Contracting Parties under the existing international treaties on the protection of copyright and the importance and flexibility of the three-step test for limitations and exceptions established in Article9(2) of the Berne Convention for the Protection of Literary and Artistic Works and other international instruments,

…

[(12)]Recognising the importance of the international copyright system and desiring to harmonise limitations and exceptions with a view to facilitating access to and use of works by persons with visual impairments or with other print disabilities,

…’

9.Article1 of the Marrakesh Treaty is worded as follows:

‘Nothing in this Treaty shall derogate from any obligations that Contracting Parties have to each other under any other treaties, nor shall it prejudice any rights that a Contracting Party has under any other treaties.’

10.Article2 of that treaty provides:

‘For the purposes of this Treaty:

(a)“works” means literary and artistic works within the meaning of Article2(1) of the Berne Convention for the Protection of Literary and Artistic Works, in the form of text, notation and/or related illustrations, whether published or otherwise made publicly available in any media …;

(b)“accessible format copy” means a copy of a work in an alternative manner or form which gives a beneficiary person access to the work, including to permit the person to have access as feasibly and comfortably as a person without visual impairment or other print disability. The accessible format copy is used exclusively by beneficiary persons and it must respect the integrity of the original work, taking due consideration of the changes needed to make the work accessible in the alternative format and of the accessibility needs of the beneficiary persons;

(c)“authorised entity” means an entity that is authorised or recognised by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis. It also includes a government institution or non-profit organisation that provides the same services to beneficiary persons as one of its primary activities or institutional obligations …

An authorised entity establishes and follows its own practices:

(i)to establish that the persons it serves are beneficiary persons;

(ii)to limit to beneficiary persons and/or authorised entities its distribution and making available of accessible format copies;

(iii)to discourage the reproduction, distribution and making available of unauthorised copies; and

(iv)to maintain due care in, and records of, its handling of copies of works, while respecting the privacy of beneficiary persons in accordance with Article8.’

11.Article4(1) of the Marrakesh Treaty provides as follows:

‘(a)Contracting Parties shall provide in their national copyright laws for a limitation or exception to the right of reproduction, the right of distribution, and the right of making available to the public as provided by the WIPO Copyright Treaty (WCT), to facilitate the availability of works in accessible format copies for beneficiary persons. …

(b)Contracting Parties may also provide a limitation or exception to the right of public performance to facilitate access to works for beneficiary persons.’

12.Article4(2) of the Marrakesh Treaty specifies that a Contracting Party may fulfil the requirements set out in Article4(1) thereof by providing in its national law a limitation or exception with certain features as described in Article4(2).

13.Paragraphs3 to 5 of Article4 of the Marrakesh Treaty provide:

‘3.A Contracting Party may fulfil Article4(1) by providing other limitations or exceptions in its national copyright law pursuant to Articles10 and 11 …

4.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. …

5.It shall be a matter for national law to determine whether limitations or exceptions under this Article are subject to remuneration.’

14.Under Article5 of the Marrakesh Treaty:

‘1.Contracting Parties shall provide that if an accessible format copy is made under a limitation or exception or pursuant to operation of law, that accessible format copy may be distributed or made available by an authorised entity to a beneficiary person or an authorised entity in another Contracting Party …

2.A Contracting Party may fulfil Article5(1) by providing a limitation or exception in its national copyright law such that:

(a)authorised entities shall be permitted, without the authorisation of the rightholder, to distribute or make available for the exclusive use of beneficiary persons accessible format copies to an authorised entity in another Contracting Party; and

(b)authorised entities shall be permitted, without the authorisation of the rightholder and pursuant to Article2(c), to distribute or make available accessible format copies to a beneficiary person in another Contracting Party;

provided that prior to the distribution or making available the originating authorised entity did not know or have reasonable grounds to know that the accessible format copy would be used for other than beneficiary persons …

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4.(a)When an authorised entity in a Contracting Party receives accessible format copies pursuant to Article5(1) and that Contracting Party does not have obligations under Article9 of the Berne Convention, it will ensure, consistent with its own legal system and practices, that the accessible format copies are only reproduced, distributed or made available for the benefit of beneficiary persons in that Contracting Party’s jurisdiction.

(b)The distribution and making available of accessible format copies by an authorised entity pursuant to Article5(1) shall be limited to that jurisdiction unless the Contracting Party is a Party to the WIPO Copyright Treaty or otherwise limits limitations and exceptions implementing this Treaty to the right of distribution and the right of making available to the public to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder …

…’

15.Article6 of the Marrakesh Treaty provides:

‘To the extent that the national law of a Contracting Party would permit a beneficiary person, someone acting on his or her behalf, or an authorised entity, to make an accessible format copy of a work, the national law of that Contracting Party shall also permit them to import an accessible format copy for the benefit of beneficiary persons, without the authorisation of the rightholder.’

16.Paragraphs1 and 2 of Article9 of the Marrakesh Treaty are worded as follows:

‘1.Contracting Parties shall endeavour to foster the cross-border exchange of accessible format copies by encouraging the voluntary sharing of information to assist authorised entities in identifying one another. The International Bureau of WIPO shall establish an information access point for this purpose.

2.Contracting Parties undertake to assist their authorised entities engaged in activities under Article5 to make information available regarding their practices pursuant to Article2(c), both through the sharing of information among authorised entities, and through making available information on their policies and practices, including related to cross-border exchange of accessible format copies, to interested parties and members of the public as appropriate.’

17.Article11 of that treaty provides:

‘In adopting measures necessary to ensure the application of this Treaty, a Contracting Party may exercise the rights and shall comply with the obligations that that Contracting Party has under the Berne Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Copyright Treaty, including their interpretative agreements so that:

(a)in accordance with Article9(2) of the Berne Convention, a Contracting Party may permit the reproduction of 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;

(b)in accordance with Article13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, a Contracting Party shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder;

(c)in accordance with Article10(1) of the WIPO Copyright Treaty, a Contracting Party may provide for limitations of or exceptions to the rights granted to authors under the WCT in certain special cases, that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author;

(d)in accordance with Article10(2) of the WIPO Copyright Treaty, a Contracting Party shall confine, when applying the Berne Convention, any limitations of or exceptions to rights to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.’

18.Article12 of the Marrakesh Treaty is worded as follows:

‘1.Contracting Parties recognise that a Contracting Party may implement in its national law other copyright limitations and exceptions for the benefit of beneficiary persons than are provided by this Treaty having regard to that Contracting Party’s economic situation, and its social and cultural needs, in conformity with that Contracting Party's international rights and obligations, and in the case of a least-developed country taking into account its special needs and its particular international rights and obligations and flexibilities thereof.

2.This Treaty is without prejudice to other limitations and exceptions for persons with disabilities provided by national law.’

Origin and history of the treaty whose conclusion is envisaged

19.On 26November 2012, the Council of the European Union adopted a decision authorising the Commission to participate, on behalf of the European Union, in negotiations within the framework of the World Intellectual Property Organisation (WIPO) on a possible international treaty introducing limitations and exceptions to copyright for the benefit of people who are blind, visually impaired or otherwise print disabled (‘beneficiary persons’).

20.Those negotiations were concluded at the diplomatic conference held in Marrakesh between 17 and 28June 2013 and resulted in the adoption, on 27June 2013, of the Marrakesh Treaty.

21.The Council authorised the signing of that treaty, on behalf of the European Union, by Council Decision 2014/221/EU of 14April 2014 (OJ 2014 L115, p.1). The decision cited as a legal basis both Article114 TFEU and Article207 TFEU.

22.On 21October 2014, the Commission adopted a proposal for a decision on the conclusion of the Marrakesh Treaty on behalf of the European Union, citing the same legal basis. That proposal did not obtain the necessary majority in the Council.