[A2k] IP-Watch: Leaked Text: Is EU Tempted By Too Many Safeguards Limiting The Scope Of Blind Treaty?

Thiru Balasubramaniam thiru at keionline.org
Wed Mar 22 02:55:23 PDT 2017


Leaked Text: Is 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.

The leaked document (from the General Secretariat of the Council of the EU
to the Permanent Representatives Committee), seen by Intellectual Property
Watch, is the latest draft proposal for a directive of the European
Parliament and the Council. The directive would be on “certain permitted
uses of works and other subject-matter protected by copyright and related
rights for the benefit of persons who are blind, visually impaired or
otherwise print disabled and amending Directive 2001/29/EC on the
harmonisation of certain aspects of copyright and related rights in the
information society.”

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.

Today, the Corporate Europe Observatory published a research paper saying
that “certain EU member states and Members of the European Parliament have
sought to prioritise the economic interest of the publishers’ lobby over
support for print-disabled people” (IPW, Copyright Policy, 21 March 2017).

The vote of the European Parliament on the ratification is scheduled for 23
March, the document said.

The document lists the main changes compared to the initial proposed draft

– Alignment of the definition of authorised entities as in the Marrakesh
Treaty in Article 2

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

– Inclusion of obligations on authorised 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.”

It also appears in the World Trade Organization Agreement on Trade-Related
Intellectual Property Rights (TRIPS), in Article 13 (Limitations and

The three-step test provides for limitations and exceptions to the
Marrakesh treaty, and appears in Article 12 of the Marrakesh Treaty.

Authorised Entities, Commercial Availability

Article 4b (Transparency and exchange of information) of the leaked draft
directive asks that member states encourage authorised 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 authorised 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.

Recital 11 of what looks like regulations preceding the text of the
directive states: “Member States may determine whether exceptions or
limitations under this Directive are subject to fair compensation.
Furthermore, Member States may confine those exceptions and limitations
under this Directive to works which, in the particular accessible format,
cannot be obtained commercially under reasonable terms for beneficiary

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. Any Contracting
Party availing itself of this possibility shall so declare in a
notification deposited with the Director General of WIPO at the time of
ratification of, acceptance of or accession to this Treaty or at any time

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.”

Civil Society, Visually Impaired Concerned

Civil society and visually impaired people have voiced concerns over the
implementation by the European Union of the Marrakesh Treaty, and in
particular that some provisions of the directive might undermine the goals
of the treaty, which is to diminish the “book famine” for visually impaired

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 favour 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.

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