Legal elements of EU proposal to adopt Marrakesh Treaty

The Treaty’s ‘beneficiaries’ are people who are blind, have a visual impairment or a perceptual or reading disability, or are otherwise unable, due to physical disability, to hold or manipulate a book, or focus or move their eyes to the extent that would be normally acceptable for reading.

The Treaty obliges every Contracting Party to provide, in their national copyright laws, for a limitation or exception to the rights of reproduction, distribution and making available to the public, to facilitate the availability of works in accessible formats for the Treaty’s beneficiaries. Contracting Parties may decide to limit such limitations or exceptions to cases where accessible format copies are not commercially available on reasonable terms to beneficiaries in their territory.

The Treaty defines ‘works’ as literary and artistic works within the meaning of Article 2(1) of the Berne Convention for the Protection of Literary and Artistic Works (‘the Berne Convention’), in the form of text, notation and/or related illustrations, whether published or otherwise made publicly available in any media. By virtue of an agreed statement, this also covers audiobooks.

An ‘accessible-format copy’ is a copy in an alternative manner and form compared to the format in which the work has been published and which gives beneficiaries access to the work as comfortably as sighted people could access it. The accessible-format copy must be used exclusively by beneficiaries and it must respect the integrity of the original work.

Accessible format copies made under a limitation or exception to copyright may be exported by ‘authorised entities’, defined as government institutions or other organisations that provide education, instructional training, adaptive reading or information access to blind, visually impaired, or otherwise print-disabled persons on a non-profit basis. These entities must ensure that they only distribute accessible formats to beneficiaries, that they discourage the reproduction, distribution and making available of unauthorised copies and that they maintain due care in, and records of, their handling of the copies.

Contracting Parties may only allow accessible format copies to be exported, if they ensure that relevant limitations or exceptions to the rights of reproduction, distribution and making available to the public are subject to the ‘three-step test’. This means that either they must be a party to the WIPO Copyright Treaty (WCT) or they must otherwise ensure that the relevant limitations or exceptions are limited to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

The Treaty clarifies that, to the extent a Contracting Party permits a beneficiary or an authorised entity to make an accessible-format copy of a work, it should also permit accessible-format copies to be imported. Contracting Parties are obliged (de) to take appropriate measures, if necessary, to ensure that when they provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures, this legal protection does not prevent the beneficiaries from enjoying the limitations and exceptions provided for in the Treaty.

The Treaty confirms that Contracting Parties are free to determine the appropriate method of implementing the Treaty within their own legal system and practice. However, they must comply with existing international obligations under the Berne Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WCT. The Treaty recognises that the Contracting Parties may maintain or implement other limitations and exceptions for beneficiaries and people with other disabilities, outside the scope of the Treaty.