Kulturudvalget 2016-17
KUU Alm.del Bilag 24
Offentligt
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EUROPEAN
COMMISSION
Brussels, 14.9.2016
COM(2016) 596 final
2016/0278 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
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
(Text with EEA relevance)
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EXPLANATORY MEMORANDUM
1.
•
CONTEXT OF THE PROPOSAL
Reasons for and objectives of the proposal
The proposed Directive will bring Union law into line with the EUʼs international
commitments under the Marrakesh Treaty to Facilitate Access to Published Works for
Persons who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘the Marrakesh
Treaty’).
The Marrakesh Treaty was adopted in 2013 at the World Intellectual Property Organisation
(WIPO) with the aim of facilitating the availability and cross-border exchange of books and
other print material in accessible formats around the world. It was signed by the Union
1
in
April 2014. The Treaty requires the parties to provide exceptions or limitations to copyright
and related rights for the benefit of blind, visually impaired and otherwise print-disabled
persons and allows for the cross-border exchange of special format copies of books, including
audio books, and other print material between countries that are parties to the Treaty. The
Union has thus made a political commitment to implement the Treaty, which both the Council
and the European Parliament have since strengthened. The Commission separately presented
a proposal for a Council Decision for the ratification of the Marrakesh Treaty by the Union in
October 2014. In May 2015, the Council submitted a request to the Commission under Article
241 of the Treaty on the Functioning of the European Union (TFEU), in which it underlined
its full commitment to the rapid entry into force of the Marrakesh Treaty and asked the
Commission to submit, without delay, a legislative proposal to amend the Union legal
framework in accordance with the Treaty.
The beneficiaries of the Marrakesh Treaty, i.e. persons who are blind, visually impaired, or
otherwise print disabled ('beneficiary persons') face many barriers to accessing books and
other print material protected by copyright and related rights. The availability of books in
formats that are accessible to print-disabled persons is estimated to be between 7 %
2
and 20
%
3
despite the fact that digital technology greatly facilitates accessible publishing
4
.
Accessible formats include e.g. Braille, large print, e-books and audiobooks with special
navigation, audio description and radio broadcasts.
The objective of the proposed Directive is to increase the availability of works and other
protected subject-matter, e.g. books, journals, newspapers, magazines and other writings,
sheet music and other print material, including in audio form, in formats that are accessible to
beneficiary persons. It will do this by ensuring that all beneficiary persons and organisations
serving their needs on a non-profit basis can rely on a mandatory and harmonised exception to
copyright and related rights within the Union. This will allow to make accessible format
copies of otherwise non-accessible works and other subject matter that have already been
published or made available. The proposed Directive would amend the existing Union
legislative framework accordingly and ensure that the accessible format copies made in one
Member State can be disseminated and accessed throughout the Union. With respect to the
1
2
3
4
Council Decision 2014/221/EU of 14 April 2014 on the signing, on behalf of the European Union, of
the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually
Impaired, or otherwise Print Disabled (OJ L115, 17.4.2014, p. 1.).
LISU for the Royal National Institute of Blind People (RNIB),
ʻAvailability of accessible publications
-
2011 updateʼ, October 2011.
Catherine Meyer-Lereculeur
ʻException ʻhandicapʼ au droit d’auteur et développement de l’offre de
publications accessibles à l’ère numériqueʼ, May 2013.
These figures refer to availability in some but not all accessible formats.
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obligations imposed by the Marrakesh Treaty on the cross-border exchange of accessible
format copies between the Union and third countries that are parties to the Treaty, this
Directive should be read together with Regulation […].
The proposed Directive is also in line with the Union's obligations deriving from the United
Nations Convention on the Rights of Persons with Disabilities (ʻthe UNCRPDʼ). The EU has
been bound by the UNCRPD since January 2011, pursuant to Council Decision 2010/48/EC
5
.
The provisions set out in the UNCRPD have thus become an integral part of the Union's legal
order. The right of access to information and the right of people with disabilities to participate
in cultural life on an equal basis with others are enshrined in the UNCRPD. Its article 30
requires parties to the Convention to take all appropriate steps, in accordance with
international law, to ensure that laws protecting intellectual property rights do not constitute
an unreasonable or discriminatory barrier to access by persons with disabilities to cultural
materials. In its Concluding observations on the initial report of the European Union
6
, adopted
on 4 September 2015, the United Nations Committee on the Rights of Persons with
Disabilities has encouraged the Union to take all appropriate measures to implement the
Marrakesh Treaty as soon as possible.
•
Consistency with existing policy provisions in the policy area
The Union has adopted a number of Directives in the area of copyright and related rights that
provide legal certainty and a high level of protection for rightholders. The rights that are
relevant for the proposed Directive are currently harmonised in Directive 2001/29/EC on the
harmonisation of certain aspects of copyright and related rights in the information society
(ʻDirective 2001/29/ECʼ)
7
, in Directive 2006/115/EC on rental right and lending right and on
certain rights related to copyright in the field of intellectual property
8
, in Directive 96/9/EC on
the legal protection of databases
9
and in Directive 2009/24/EC on the legal protection of
computer programs
10
.
Union law also provides for a number of exceptions or limitations to these rights, which
allow, under certain conditions and for the purpose of achieving certain policy objectives, the
use of content without the authorisation of the rightholder. The accessibility needs of persons
with a disability were recognised in this context, and were provided for notably by Article
5(3)(b) of Directive 2001/29/EC. This provision allows Member States to introduce
exceptions or limitations to copyright and related rights for the benefit of persons with
disabilities, including print disabilities, in respect of uses which are directly related to the
disability, of a non-commercial nature and to the extent required by the specific disability. In
accordance with the requirements of the Marrakesh Treaty, the exception introduced by the
5
6
7
8
9
10
Council Decision 2010/48/EC of 26 November 2009 concerning the conclusion, by the European
Community, of the United Nations Convention on the Rights of Persons with Disabilities (OJ L23,
27.1.2010, p. 35).
CRPD/C/EU/CO/1,
available
at:
http://tbinternet.ohchr.org/Treaties/CRPD/Shared%20Documents/EUR/CRPD_C_EU_CO_1_21617_E.
doc.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167,
22.6.2001, p. 10-19).
Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental
right and lending right and on certain rights related to copyright in the field of intellectual property (OJ
L 376, 27.12.2006, p. 28-35).
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal
protection of databases (OJ L 77, 27.3.1996, p. 20-28).
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal
protection of computer programs (OJ L 111, 5.5.2009, p. 16-22).
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proposed Directive will be mandatory for Member States, and will apply to rights that have
been harmonised at Union level and that are relevant for the making and dissemination of
accessible format copies as defined in the Marrakesh Treaty. The exception complements the
existing optional exception or limitation provided for in Article 5(3)(b) of Directive
2001/29/EC by introducing a mandatory exception for the benefit of beneficiary persons that
will have effect throughout the internal market.
•
Consistency with other Union policies
With the adoption of this Directive, the Union aims to ensure that all beneficiary persons have
access to books, journals, newspapers, magazines and other writings, sheet music and other
print material to substantially the same degree as persons without an impairment or disability,
and that the full potential of the internal market can be exploited to achieve this. In this
respect, the proposed Directive is consistent with and complements other legislation and
initiatives taken at Union level to ʻbuild on the strength of our single market and to fully
exploit its potential in all its dimensionsʼ
11
. These include a proposal for a Directive of the
European Parliament and of the Council on the accessibility of public sector bodiesʼ websites
and one for a Directive of the European Parliament and of the Council on the approximation
of the laws, regulations and administrative provisions of the Member States as regards the
accessibility requirements for products and services (ʻthe European Accessibility Act
proposalʼ). In particular, the European Accessibility Act proposal includes obligations to
ensure that e-book services provided in the internal market as of its date of application comply
with certain functional requirements so that they are accessible from the moment they are put
on the market.
2.
•
LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
Legal basis
The legal basis for the proposal is Article 114 of the Treaty on the Functioning of the
European Union (TFEU).
•
Subsidiarity (for non-exclusive competence)
The Union may adopt measures in accordance with the principle of subsidiarity as set out in
Article 5 TFEU. The objective of this proposed Directive is to facilitate access to certain
content protected by copyright and related rights for the beneficiary persons of the Marrakesh
Treaty within the internal market in an area that is already harmonised by Union law and
consequently can only be amended by Union law. In the absence of Union intervention, this
objective could not be achieved by Member States. In addition, by reason of scale and effects,
this objective can be better achieved at Union level.
•
Proportionality
The proportionality of the proposal is ensured as it does not go beyond what is necessary to
implement the Union obligations under the Marrakesh Treaty within the Union.
•
Choice of the instrument
The choice of a Directive is consistent with previous measures in this area, notably Directive
2001/29/EC which harmonised the rights of authors and other rightholders and introduced an
optional exception or limitation for the benefit of people with a disability. The proposed
Directive would amend the existing Union legislative framework by providing for a new
11
President Junckerʼs Political Guidelines.
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mandatory exception to the relevant harmonised rights and ensuring that accessible format
copies made in one Member State under that exception can be disseminated and accessed
throughout the Union. In so doing and by providing for clear definitions, it introduces a
uniform approach to the Union's obligations under the Treaty, including the free circulation of
accessible format copies in the internal market, providing the beneficiaries of the exception
with the necessary legal certainty in undertaking the uses that it covers. At the same time, it
allows for a certain margin of manoeuvre for Member States for adapting specific national
legislation that might be directly or indirectly affected by the provisions of this Directive, for
example in the area of education, healthcare or other social policies.
3.
•
RESULTS
OF
EX-POST
EVALUATIONS,
CONSULTATIONS AND IMPACT ASSESSMENTS
Ex-post evaluations/fitness checks of existing legislation
STAKEHOLDER
The purpose of the proposed Directive is to fulfil new international obligations as regards
Union law. A retrospective evaluation of existing European law in this area is therefore not
relevant and not required in this context. Available information on related European
legislation was however taken into account, notably the results of public consultations and
existing expert input.
•
Stakeholder consultations
No specific stakeholder consultation was carried out for the purposes of the proposed
Directive, which implements provisions established at international level. The extensive
public consultation on the review of the EU copyright rules carried out by the Commission
between December 2013 and March 2014 also included a section on limitations and
exceptions for the benefit of persons with disabilities and on the access to and circulation of
works in accessible formats, which also referred to the Marrakesh Treaty
12
. Among other
aspects, the views expressed by end users, consumers and institutional users (including
organisations serving the needs of people with disabilities and libraries) pointed to a diverging
scope of national exceptions or limitations, making it difficult to have legal certainty when
exporting and importing accessible format copies made under a national copyright exception
or limitation. These institutional respondents were consistently of the opinion that the
Marrakesh Treaty would satisfactorily address these concerns. Rightholders and collective
management organisations generally felt that there were no problems arising from the national
implementation of the optional exception or limitation provided for in Union legislation. They
also remarked that existing market mechanisms were effectively addressing the problem of
access to works for persons with disabilities. This view was not shared by end users,
consumers or institutional users.
•
Collection and use of expertise
No expertise was collected specifically in preparation of this proposal. The Commission took
into account a 2013 study on the application of Directive 2001/29/EC
13
, which assessed
inter
alia
the application in 11 Member States of the optional exception or limitation for persons
with a disability provided for in Article 5(3)(b) of that Directive.
12
13
Report on the responses to the Public Consultation on the Review of the EU Copyright Rules, July
2014, p. 61-63.
http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm
.
"Study on the application of Directive 2001/29/EC on copyright and related rights in the information
society",
December
2013,
De
Wolf
and
partners,
available
at:
http://ec.europa.eu/internal_market/copyright/docs/studies/131216_study_en.pdf
, p. 417 et seq.
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•
Impact assessment
The proposed Directive will implement the Marrakesh Treaty in the internal market and aims
to bring Union law into line with the Treaty. The Better Regulation Guidelines
14
do not
require an impact assessment to be carried out when the Commission has no discretion over
the policy content.
•
Fundamental rights
The proposed Directive supports the right of persons with disabilities to benefit from
measures designed to ensure their independence, social and occupational integration and
participation in the life of the community, as enshrined in Article 26 of the Charter of
Fundamental Rights of the European Union ('the Charter'). The Directive also reflects the
Union's commitments under the UNCRPD. The UNCRPD guarantees people with disabilities
the right of access to information and the right to participate in cultural, economic and social
life on an equal basis with others. In view of this, it is justified to restrict the property rights of
rightholders in light of the Union's obligations under the Charter
15
. The proposed Directive is
an essential first step in ensuring such access to information and participation in cultural,
economic and social life.
The proposal would have limited impact on copyright as a property right as recognised in the
Charter (Article 17(2))
16
. It should be noted that, at present, all Member States have to some
extent made use of the optional copyright exception or limitation provided for in Article
5(3)(b) of Directive 2001/29/EC. The impact of the proposed Directive on copyright as a
property right will thus be limited to fully harmonising the existing divergent copyright
exceptions or limitations for persons with print disabilities that are in force in the Member
States.
4.
BUDGETARY IMPLICATIONS
The proposal has no impact on the Union budget.
5.
OTHER ELEMENTS
European Economic Area
The proposed act relates to an European Economic Area (EEA) matter and it should extend to
the EEA.
E-
•
Implementation plans and monitoring, evaluation and reporting arrangements
Member States will be obliged to bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive by 12 months after its adoption. Member
States will be required to communicate to the Commission the provisions introduced to
comply with this Directive, and other major legislative provisions adopted in the field covered
by this Directive. The Commission will monitor the implementation of the proposed Directive
and, in accordance with Better Regulation Guidelines and no sooner than five years after the
14
15
16
SWD(2015) 111 final.
Article 52(1) of the Charter allows restrictions interfering with the exercise of the freedoms of the
Charter. Such restrictions must (i) be provided for by law; and (ii) respect the essence of those rights
and freedoms. In addition, the limitations are (iii) ʻsubject to the principle of proportionalityʼ and ʻmay
be made only if they are necessary and genuinely meet objectives of general interest recognized by the
Union or the need to protect the rights and freedoms of othersʼ.
OJ C 83, 30.3.2010, p. 389–403.
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date of transposition, it shall carry out an evaluation of the Directive and present the main
findings to the European Parliament, the Council and the European Economic and Social
Committee, accompanied, where appropriate, by proposals for the amendment of the
Directive. In the same way, it will also carry out an evaluation
of Regulation […]. The
Commission will also monitor the availability in accessible formats of works and other
subject-matter other than those covered by this Directive, and the availability of works and
other subject-matter in accessible formats for people with other disabilities, within the Union.
The Commission will, by two years after the date of transposition of the proposed Directive,
present a report on this matter. That report shall include an assessment on whether expanding
the scope of this Directive in accordance with its findings should be considered.
•
Explanatory documents
In the Joint Political Declaration of 28 September 2011 of Member States and the
Commission on explanatory documents
17
, Member States agreed to provide the Commission,
when notifying it of the measures taken to transpose a directive, with one or more documents
explaining the relationship between the provisions of the directive and corresponding
provisions of their national measures, where there is a justification for demanding this
additional information. The explanatory documentation will help to ensure that all national
legal systems put in place a mandatory exception in line with this Directive in the light of
Union obligations under the Marrakesh Treaty.
•
Detailed explanation of the specific provisions of the proposal
Article 1 specifies the subject-matter and the scope of the proposal. The proposed Directive
will facilitate the use of certain copyright protected content, without the authorisation of the
rightholder, for the benefit of persons who are blind, visually impaired or otherwise print
disabled.
Article 2 gives the definitions of the terms ʻwork and other subject-matterʼ, ʻbeneficiary
personʼ, ʻaccessible format copyʼ and ʻauthorised entityʼ that apply for the purposes
of the
proposed Directive.
Article 3 provides for a mandatory exception and states the specific permitted uses by
beneficiary persons and authorised entities.
Article 4 relates to the circulation of accessible format copies in the internal market. The
provision aims to ensure that accessible format copies made under the exception provided for
in Article 3 may circulate or be accessed in any Member State.
Article 5 sets out the applicable rules for the protection of personal data.
Article 6 states the amendments to be made to Directive 2001/29/EC to ensure coherence with
this Directive.
Article 7 states that the Commission will present a report on the availability in the internal
market of works and other subject matter in accessible formats and for persons with
disabilities other than those covered by this Directive.
Article 8 sets out the arrangements on the evaluation of the proposed Directive, in accordance
with Better Regulation rules.
17
OJ C 369, 17.12.2011, p. 14.
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Article 9 sets the time frame for the transposition of the proposed Directive by the Member
States and specifies a number of accompanying obligations that must be met by the Member
States, e.g. to notify the Commission of the main provisions that implement the proposed
Directive in their national law.
Article 10 specifies the date of the Directive's entry into force and Article 11 states that the
Directive is addressed to the Member States.
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2016/0278 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
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
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 114 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee
18
,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1)
Union Directives in the area of copyright and related rights provide legal certainty and
a high level of protection for rightholders. This harmonised legal framework
contributes to the proper functioning of the internal market and stimulates innovation,
creation, investment and the production of new content, including in the digital
environment. It also aims to promote access to knowledge and culture by protecting
works and other subject-matter and by permitting exceptions or limitations that are in
the public interest. A fair balance of rights and interests between rightholders and
users should be safeguarded.
Directive 96/9/EC of the European Parliament and of the Council
19
, Directive
2001/29/EC of the European Parliament and of the Council
20
, Directive 2006/115/EC
of the European Parliament and of the Council
21
and Directive 2009/24/EC of the
European Parliament and of the Council
22
harmonise the rights of rightholders. Those
Directives provide for an exhaustive list of exceptions and limitations to those rights,
which allow for the use of content without the authorisation of the rightholders under
certain conditions in order to achieve certain policy objectives.
Persons who are blind, visually impaired or otherwise print disabled continue to face
many barriers in accessing books and other print material which are protected by
copyright and related rights. Measures need to be taken to increase the availability of
OJ C , , p. .
OJ L 77, 27.3.1996, p. 20-28.
OJ L 167, 22.6.2001, p. 10-19.
OJ L 376, 27.12.2006, p. 28-35.
OJ L 111, 5.5.2009, p. 16-22.
(2)
(3)
18
19
20
21
22
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those works in accessible formats and to improve their circulation in the internal
market.
(4)
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are
Blind, Visually Impaired, or Otherwise Print Disabled (ʻthe Marrakesh Treatyʼ) was
signed on behalf of the Union on 30 April 2014
23
. Its aim is to improve the availability
of works and other protected subject-matter in accessible formats for persons who are
blind, visually impaired or otherwise print disabled. The Marrakesh Treaty requires
contracting parties to provide exceptions or limitations to the rights of holders of
copyright and related rights for the making and dissemination of copies in accessible
formats of certain works and other subject-matter, and for the cross-border exchange
of those copies. The conclusion of the Marrakesh Treaty by the Union requires the
adaptation of Union law by establishing a mandatory exception for uses, works and
beneficiary persons covered by the Treaty. 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 those measures are applied consistently throughout the internal
market.
This Directive is designed for the benefit persons who are blind, have a visual
impairment which cannot be improved so as to give those persons visual function
substantially equivalent to that of a person who has no such impairment, or have a
perceptual or reading disability, including dyslexia, preventing them from reading
printed works to substantially the same degree as persons without such disability, or
are unable to hold or manipulate a book or to focus or move the eyes to the extent that
would be normally acceptable for reading due to a physical disability. The objective of
the measures introduced by this Directive is to improve the availability of books,
journals, newspapers, magazines and other writings, sheet music and other print
material, including in audio form, whether digital or analogue, in formats that make
those works and other subject-matter accessible to those persons to substantially the
same degree as to persons without an impairment or disability. Accessible formats
include Braille, large print, adapted e-books, audio books and radio broadcasts.
This Directive should therefore provide for mandatory exceptions to the rights that are
harmonised by Union law and are relevant for the uses and works covered by the
Marrakesh Treaty. These include in particular the rights of reproduction,
communication to the public, making available, distribution and lending, as provided
for in Directive 2001/29/EC, Directive 2006/115/EC, and Directive 2009/24/EC, as
well as the corresponding rights in Directive 96/9/EC. As the scope of exceptions and
limitations required by the Marrakesh Treaty also includes works in audio form, like
audiobooks, it is necessary that these exceptions also apply to related rights.
Uses laid down in this Directive include the making of accessible format copies by
either the beneficiary persons or authorised entities serving their needs
—
whether
public or private organisations, in particular libraries, educational establishments and
other non-profit organisations that serve persons with a print disability as their main or
one of their main activities or public interest missions
—.
Those uses should also
include making accessible format copies, for the exclusive use of the beneficiary
persons, by a natural person who does so on behalf of a beneficiary person or who
assists the beneficiary person in doing so.
Council Decision 2014/221/EU of 14 April 2014 on the signing, on behalf of the European Union, of
the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually
Impaired, or otherwise Print Disabled. (OJ L115, 17.4.2014, p. 1).
(5)
(6)
(7)
23
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(8)
The mandatory exception should also 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. This
includes providing the necessary means to navigate information in an accessible
format copy.
The exception should allow authorised entities to make and disseminate online and
offline within the Union accessible format copies of works or other subject-matter
covered by this Directive.
It should be possible for accessible format copies made in one Member State to be
available in all Member States, in order to ensure their greater availability across the
internal market. This would reduce the demand for redundant work in producing
accessible format copies of the same work or other subject matter across the Union,
thus generating savings and efficiency gains. This Directive should therefore ensure
that accessible format copies made in one Member State may be circulated and
accessed in all Member States. An authorised entity should thus be able to disseminate
those copies, offline or online, to beneficiary persons and authorised entities in any
Member State. Moreover, authorised entities and beneficiary persons should be
allowed to obtain or have access to those copies from any authorised entity in any
Member State.
In view of the specific nature of the exception, its targeted scope and the need for legal
certainty for its beneficiaries, Member States should not be allowed to impose
additional requirements for the application of the exception, such as compensation
schemes or the prior verification of the commercial availability of accessible format
copies.
Any processing of personal data under this Directive should respect fundamental
rights, including the right to respect for private and family life and the right to
protection of personal data under Articles 7 and 8 of the Charter of Fundamental
Rights of the European Union and must be in compliance with Directive 95/46/EC of
the European Parliament and of the Council, which governs the processing of personal
data, as may be carried out by authorised entities within the framework of this
Directive and under the supervision of the Member Statesʼ competent authorities, in
particular the public independent authorities designated by the Member States.
The United Nations Convention on
the Rights of Persons with Disabilities (ʻthe
UNCRPDʼ), to which the EU is a party, guarantees people with disabilities the right of
access to information and the right to participate in cultural, economic and social life
on an equal basis with others. The UNCRPD requires parties to the Convention to take
all appropriate steps, in accordance with international law, to ensure that laws
protecting intellectual property rights do not constitute an unreasonable or
discriminatory barrier to access by persons with disabilities to cultural materials.
Under the Charter of Fundamental Rights of the European Union, the Union
recognises and respects the right of people with disabilities to benefit from measures
designed to ensure their independence, social and occupational integration and
participation in the life of the community.
With the adoption of this Directive, the Union aims to ensure that beneficiary persons
have access to books and other print material in accessible formats. Accordingly, this
Directive is an essential first step in improving access to works for people with
disabilities.
(9)
(10)
(11)
(12)
(13)
(14)
(15)
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(16)
The Commission will monitor the effect of this Directive. As part of this, it will assess
the situation regarding the availability in accessible formats of works and other
subject-matter other than those covered by this Directive, as well as the availability of
works and other subject-matter in accessible formats for persons with other
disabilities. The Commission will review the situation closely. Changes to the scope of
this Directive may be considered, if necessary.
Pursuant to Directive 2001/29/EC, Member States may continue to provide for an
exception or limitation for the benefit of persons with a disability in cases which are
not covered by this Directive.
This Directive therefore respects the fundamental rights and observes the principles
recognised in particular by the Charter of Fundamental Rights of the European Union.
This Directive should be interpreted and applied in accordance with those rights and
principles.
The Marrakesh Treaty imposes certain obligations regarding the exchange of
accessible format copies between the Union and third countries that are parties to the
Treaty. The measures taken by the Union to fulfil those obligations are contained in
Regulation […] which should be read in conjunction with this Directive.
The objective of this Directive
—
implementing the Union's obligations under the
Marrakesh Treaty in order to improve access to works and other subject-matter
protected by copyright and related rights for persons who are blind, visually impaired
or otherwise print disabled in the Union
—
cannot be achieved by the Member States
acting independently, as it requires the adaptation of Union law. Furthermore, by
reason of its scale and effects, the objective can only be achieved through action at
Union level. The Union may therefore adopt measures in accordance with the principle
of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance
with the principle of proportionality as set out in the same Article, this Directive does
not go beyond what is necessary in order to achieve that objective.
In accordance with the Joint Political Declaration of 28 September 2011 of Member
States and the Commission on explanatory documents
24
, Member States have
undertaken to accompany, in justified cases, the notification of their transposition
measures with one or more documents explaining the relationship between the
components of a directive and the corresponding parts of national transposition
instruments. With regard to this Directive, the legislator considers the transmission of
such documents to be justified.
(17)
(18)
(19)
(20)
(21)
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Subject matter and scope
This Directive lays down rules on the use of certain works and other subject-matter without
the authorisation of the rightholder, for the benefit of persons who are blind, visually impaired
or otherwise print disabled.
Article 2
Definitions
For the purposes of this Directive the following definitions shall apply:
24
OJ C 369, 17.12.2011, p. 14.
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(1)
‘work and other subject-matter’ means a work in the form of a book, journal,
newspaper, magazine or other writing, including sheet music, and related
illustrations, in any media, including in audio forms such as audiobooks, which is
protected by copyright or related rights and which is published or otherwise lawfully
made publicly available;
‘beneficiary person’ means:
(a)
(b)
a person who is blind;
a person who has a visual impairment which cannot be improved so as to
give the person visual function substantially equivalent to that of a person
who has no such impairment;
a person who has a perceptual or reading disability, including dyslexia, and
is, as a result, unable to read printed works to substantially the same degree
as a person without an impairment or disability; or
a person who is otherwise unable, due to a physical disability, to hold or
manipulate a book or to focus or move their eyes to the extent that would
be normally acceptable for reading.
(2)
(c)
(d)
(3)
‘accessible format copy’ means
a copy of a work or other subject-matter in an
alternative manner or form that gives a beneficiary person access to the work or other
subject-matter, including allowing for the person to have access as feasibly and
comfortably as a person without a visual impairment or any of the disabilities
referred to in paragraph 2;
‘authorised entity’ means an organisation providing education, instructional training,
adaptive reading or information access to beneficiary persons on a non-profit basis,
as its main activity or as one of its main activities or public-interest missions.
Article 3
Permitted uses
(4)
1.
Member States shall provide that any act necessary for:
(a)
a beneficiary person, or a person acting on their behalf, to make an accessible
format copy of a work or other subject-matter for the exclusive use of the
beneficiary person; and
an authorised entity to make an accessible format copy and to communicate,
make available, distribute or lend an accessible format copy to a beneficiary
person or authorised entity for the purpose of exclusive use by a beneficiary
person;
(b)
does not require the authorisation of the rightholder of any copyright or related right
in the work or protected subject-matter pursuant to Articles 2, 3 and 4 of Directive
2001/29/EC, Article 1(1) of Directive 2006/115/EC, Article 8(2) and (3) and Article
9 of Directive 2006/115/EC, Article 4 of Directive 2009/24/EC and Articles 5 and 7
of Directive 96/9/EC.
2.
Member States shall ensure that the accessible format copy respects the integrity of
the work or other subject-matter, having due consideration for the changes required
to make the work accessible in the alternative format.
Article 5(5) and the first, third and fifth subparagraphs of Article 6(4) of Directive
2001/29/EC shall apply to the exception provided for in paragraph 1 of this Article.
3.
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Article 4
Accessible format copies in the internal market
Member States shall ensure that an authorised entity established in their territory may carry
out the acts referred to in Article 3(1)(b) for a beneficiary person or an authorised entity
established in any Member State. Member States shall also ensure that a beneficiary person or
authorised entity established in their territory may obtain or have access to an accessible
format copy from an authorised entity established in any Member State.
Article 5
Protection of personal data
The processing of personal data carried out within the framework of this Directive shall be
carried out in compliance with Directive 95/46/EC.
Article 6
Amendment to Directive 2001/29/EC
In Article 5(3) of Directive 2001/29/EC, point (b) is replaced by the following:
ʻ(b)
uses, for the benefit of people with a disability, which are directly related to the disability
and are of a non-commercial nature, to the extent required by the specific disability, without
prejudice to the obligations of Member States under Directive […];ʼ
Article 7
Report
By [two years after the date of transposition], the Commission shall present a report to the
European Parliament, the Council and the European Economic and Social Committee on the
availability, in accessible formats, of works and other subject-matter other than those defined
in Article 2(1) for beneficiary persons, and of works and other subject-matter for persons with
disabilities other than those referred to in Article 2(2), in the internal market. The report shall
contain an assessment on whether an amendment of the scope of this Directive should be
considered.
Article 8
Review
No sooner than [five years after the date of transposition], the Commission shall carry out an
evaluation of this Directive and present the main findings to the European Parliament, the
Council and the European Economic and Social Committee, accompanied, where appropriate,
by proposals for the amendment of this Directive.
Member States shall provide the Commission with the necessary information for the
preparation of the evaluation report and the preparation of the report referred to in Article 7.
Article 9
Transposition
1.
Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive by [12 month after entry into
force] at the latest. They shall forthwith communicate to the Commission the text of
those provisions.
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When Member States adopt those provisions, they shall contain a reference to this
Directive or be accompanied by such a reference on the occasion of their official
publication. Member States shall determine how such reference is to be made.
2.
Member States shall communicate to the Commission the text of the main provisions
of national law which they adopt in the field covered by this Directive.
Article 10
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in
the
Official Journal of the European Union.
Article 11
Addressees
This Directive is addressed to the Member States.
Done at Brussels,
For the European Parliament
The President
For the Council
The President
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