Taking into consideration the rights of blind, visually impaired or otherwise print-disabled persons as recognised in the Charter of Fundamental Rights of the European Union (the ‘Charter’) and the United Nations Convention on the Rights of Persons with Disabilities (the ʻUNCRPDʼ), measures should be taken to increase the availability of books and other printed material in accessible formats, and to improve their circulation in the internal market.
According to Opinion 3/152 of the Court of Justice of the European Union, the exceptions or limitations to copyright and related rights for the making and dissemination of copies in accessible formats of certain works and other subject-matter provided for by the Marrakesh Treaty have to be implemented within the field harmonised by Directive 2001/29/EC.
This Directive implements the obligations that the Union has to meet under the Marrakesh Treaty in a harmonised manner, with a view to ensuring that the corresponding measures are applied consistently throughout the internal market. This Directive should therefore provide for a mandatory exception to the rights that are harmonised by Union law and are relevant for the uses and works covered by the Marrakesh Treaty. This Directive does not prevent Member States from providing for exceptions or limitations to rights that are not harmonised in the copyright framework of the Union.
Such rights include, in particular, the rights of reproduction, communication to the public, making available to the public, distribution and lending, as provided for in Directives 2001/29/EC, 2006/115/EC and 2009/24/EC, as well as the corresponding rights provided for in Directive 96/9/EC. As the scope of the exceptions or limitations required by the Marrakesh Treaty also includes works in audio form, like audiobooks, the mandatory exception provided for under this Directive should also apply to related rights.
The mandatory exception provided for in this Directive should limit the right of reproduction so as to allow for any act that is necessary in order to make changes to or convert or adapt a work or other subject-matter in such a way as to produce an accessible format copy that makes it possible for beneficiary persons to access that work or other subject-matter. This includes providing the necessary means to navigate information in an accessible format copy.
It also includes changes that might be required in cases in which the format of a work or of other subject-matter is already accessible to certain beneficiary persons while it might not be accessible for other beneficiary persons, due to different impairments or disabilities, or the different degree of such impairments or disabilities.
Accessible format copies should only be made of works or other subject-matter to which beneficiary persons or authorised entities have lawful access. Member states should ensure that any contractual provision which seeks to prevent or limit the application of the exception in any way is void of legal effect. This Directive should not impose an obligation on authorised entities to make and disseminate accessible format copies.
This Directive should therefore ensure that accessible format copies made by authorised entities in any Member State can be circulated and accessed by beneficiary persons and authorised entities throughout the Union. In order to foster such cross-border exchange and to facilitate authorised entities’ mutual identification and cooperation, the voluntary sharing of information regarding the names and contact details of authorised entities established in the Union, including web sites if available, should be encouraged.
Member States should therefore provide the information received from authorised entities to the Commission. This should not imply an obligation for Member States to check the completeness and accuracy of such information or its compliance with their national law transposing this Directive. Such information should be made available online by the Commission on a central information access point at Union level.
In order to improve the availability of accessible format copies and to prevent the unauthorised dissemination of works or other subject-matter, authorised entities which engage in the distribution, communication to the public or making available to the public of accessible format copies should comply with certain obligations. Authorisation or recognition requirements that Member States may apply to authorised entities, such as those related to the provision of services of a general nature to beneficiary persons, should not have the effect of preventing entities that are covered by the definition of authorised entity under this Directive from undertaking the uses allowed under this Directive.
Member States should only be allowed to provide for compensation schemes regarding the permitted uses of works or other subject-matter by authorised entities. In order to avoid burdens for beneficiary persons, prevent barriers to the cross-border dissemination of accessible format copies and excessive requirements on authorised entities, it is important that the possibility for Member States to provide for such compensation schemes be limited. Consequently, compensation schemes should not require payments by beneficiary persons. They should only apply to uses by authorised entities established in the territory of the Member State providing for such a scheme and they should not require payments by authorised entities established in other Member States or third countries that are parties to the Marrakesh Treaty.
When determining the level of compensation, due account should be taken of the non-profit nature of the activities of authorised entities, of the public interest objectives pursued by this Directive, of the interests of beneficiaries of the exception, of the possible harm to rightholders and of the need to ensure cross-border dissemination of accessible format copies. Account should also be taken of the particular circumstances of each case, resulting from the making of a particular accessible format copy. Where the harm to a rightholder is minimal, no obligation for payment of compensation should arise.