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Copyright in the Digital Single Market. Analysis and Implementation of the New Directive. Introducing the Marrakesh Directive and Regulation. Issue 3.

24 January 2020
Fri, 01/24/2020 (All day)

Read issue 1: introducing copyright in the digital single market

Read issue 2: on portability

Introduction
The Copyright package also includes a Directive, already transposed into Belgian law by the law of 25 November 2018 (1), and a Regulation with “external effect” (2). Together, they transpose into European law the Marrakesh Treaty harmonising the limitations and exceptions with a view to improving access to and use of works for the blinds, visually impaired and persons with other reading difficulties (adopted in Marrakesh on 27 June 2013 and administered by the WIPO) (3).

Purpose
These two instruments aim to increase the availability of books and other printed materials in accessible formats, and to improve their circulation and dissemination in both the internal market and outside the European Union (4).

Scope of application
The Marrakesh Directive and the Marrakesh Regulation both define the “work and other subject matter” in their article 2(1) as “a work in the form of a book, journal, newspaper, magazine or other kind of writing, notation, including sheet music, and related illustrations, in any media, including in audio form such as audiobooks and in digital format, which is protected by copyright or related rights and which is published or otherwise lawfully made publicly available”.

Guiding principles
The Directive provides for an exception to the rights of reproduction, communication to the public, making available to the public, distribution and lending - as well as corresponding rights relating to computer programmes and databases - by permitting the use of certain works or other subject matters protected by copyright and related rights, by an authorised entity or by a beneficiary person under certain conditions (5). The Directive also regulates cross-border exchanges of copies made under that exception in the internal market. As for the Regulation, it permits the importation and exportation of those copies between an EU Member State and third countries that are party to the Marrakesh Treaty (6).

A mandatory exception
A beneficiary, a person acting on their behalf or an authorised entity can make an accessible format copy (for example in Braille, large print, an adapted e-book, an audio book or a radio broadcast) (7) of a work or other subject matter, without prior authorisation of the rightsholder of any copyright or related right, provided that they have lawful access to such work or other subject matter, and that the copy is intended for exclusive use of a beneficiary person (8).

Authorised entities are also allowed to communicate, make available, distribute or lend an accessible format copy to a beneficiary person or another authorised entity on a non-profit basis, under the same conditions (9).

This is a new mandatory exception that cannot be overridden by contract (10).

Member States can put a compensation scheme in place for the use made on the basis of this exception within the limits provided for under the Marrakesh Directive (11).


Beneficiaries
Beneficiaries of the exception are persons unable to read printed works to substantially the same degree as persons without such impairments or disabilities because they (i) are blind, (ii) have a severe visual impairment, (iii) have a perceptual or reading disability such as dyslexia, or (iv) are unable, due to a physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading (12).

Authorised entities
Only entities authorised or recognised by a Member State to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis, including public institutions or non-profit organisations that provide the same services to beneficiary persons as one of their primary activities, institutional obligations or as part of their public-interest missions, are able to rely on the exception (13). In Belgium, for example, this is the Ligue Braille or the Luisterpuntbibliotheek.

Transposition in Belgian law
The Directive was transposed in Belgian law by the law of 25 November 2018 that added a new exception to the existing exceptions in the Code of Economic Law to the chapters relating to copyright and related rights as well as rights relating to computer programmes and databases. The law also adds a new chapter 8/2 under title 5 regarding the obligations the authorised entities must comply with. Belgium did not provide for a right of compensation for authors and other rightsholders.

(1) Belgian Official Gazette, 12 December 2018.
(2) Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017 on certain permitted uses of certain 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, OJ L 242, 20.09.2017, 6-13 and Regulation (EU) 2017/1563 of the European Parliament and of the Council of 13 September 2017 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matters protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled, OJ L 242, 20.09.2017, 1- 5. For a more detailed analysis of the transposition of the Marrakesh Treaty, see: R. JAFFERALI, « Chronique de législation en droit privé – (1 er juillet — 31 décembre 2017) - Seconde partie », J.T. 2018, pp. 548-549.
(3) For a more detailed analysis of the Marrakesh Treaty, see : J. Toro and others, « Chronique de législation en droit privé – (1er janvier – 30 juin 2013) – Deuxième partie », J.T., 2014, pp. 18-19.
(4) Recital 3 of the Marrakesh Directive and recital 3 of the Marrakesh Regulation.
(5) See article 4 of the Marrakesh Directive.
(6) See articles 3 and 4 of the Marrakesh Regulation.
(7) See the definition of accessible format copy under article 2(3) of the Marrakesh Directive and article 2(3) of the Marrakesh Regulation as well as recital 7 of the Marrakesh Directive.
(8) See article 3(1) of the Marrakesh Directive.
(9) See article 3(1), b) of the Marrakesh Directive.
(10) See article 3(5) of the Marrakesh Directive.
(11) See article 3(6) and recital 14 of the Marrakesh Directive.
(12) See article 2(2) and recital 7 of the Marrakesh Directive and article 2(2) of the Marrakesh Regulation.
(13) See Article 2(4) of the Marrakesh Directive and 2(4) of the Marrakesh Regulation. These entities must comply with the obligations laid down in article 5 of the Marrakesh Directive and the corresponding article of the Regulation.
Marrakesh