The Committee of Permanent Representatives of the European Union recently approved a compromise proposal by the Greek presidency, setting up a decision on the EU Council’s signing later this month of the Marrakesh Treaty on access to books for blind and visually impaired persons. However, some EU members raised that the treaty lies within a shared competency between the EU and its member states.

On 19 March, the Permanent Representatives Committee (COREPER), which is responsible for preparing the work of the Council of the European Union, approved a “proposal for a Council Decision on the signing, on behalf of the European Union, of the Treaty of Marrakesh which facilitates access to published works by persons who are blind, visually impaired or otherwise print disabled,” according to a release by Greece (in the six-month rotating EU presidency).

The Presidency proposal [pdf] from December was agreed by the COREPER, “subject to its finalisation by the legal-linguistic experts,” according to a Council note (document 8305/14) to the COREPER. The note, dated 31 March, further invites the COREPER to recommend to the Council to adopt the decision.

According to the annex to document 8305/14, containing the statements of EU members on the signature of the Marrakesh Treaty, a number of countries such as Finland, France and Germany considered that the treaty is within the area of shared competence between the Union and the member states.

Those countries said they consider that member states remain competent to be parties to the treaty, together with the EU, “at least in respect of Article 4.” Marrakesh Treaty Article 4 (National Law Limitations and Exceptions Regarding Accessible Format Copies) “imposes on the Contracting Parties an obligation to provide for a limitation or exception in their national legislation to the right of reproduction, the right of distribution and the right of making available to the public, in order to facilitate access of eligible persons to works in accessible formats,” according to the annex.

“However, Union law does not have any similar provision: in this respect, Article 5(3)(b) of Directive 2001/29/EC opens a mere possibility. Furthermore, it does not define the exceptions or limitations for the benefit of blind or otherwise print disabled persons,” the annnex states.

The Marrakesh Treaty thus goes beyond Article 5(3)(b), those countries contended, according to the annex. Art. 5(3)(b) concerns exceptions or limitations in case of “uses for the benefit for people with a disability, which are directly related to the disability and of non-commercial nature, to the extent required by the specific disability”

In particular, those countries consider that “the Union cannot impose through an international agreement, the adoption of measures that Member States remain free to provide for at the internal level.”

Poland Abstains, UK Votes Against

Poland decided to abstain from voting on the adoption of the decision on the signing, although recognising the importance of the treaty, because the country considers that “the correct legal base to sign and ratify the Marrakesh Treaty should be Art. 114 TFEU [Treaty on the Functioning of the European Union], which could be complemented with Art. 19 TFEU.”

Art. 114 stands under Chapter 3 (Approximation of laws) of the TFEU [pdf], and Art 19 deals with combating discrimination, including based on disability.

The United Kingdom, also confirmed its “strong support” for the treaty, said it had signed it and “intends to ratify it at the earliest opportunity,” but voted against the EU signature of the treaty.

The country said it considers that “the European Union does not have exclusive competence in relation to the Treaty, and that Member States are competent to sign and ratify it.” The UK said that the signature of the treaty has a legal basis including Article 207 TFEU and this legal base “relates to the promotion of the common commercial policy,” thus being an incorrect legal basis.

The European Commission considers that the subject-matter of the treaty “falls within the Union’s exclusive competence,” grounding its consideration on Art. 3(1)(e) and Art. 3(2) of the TFEU, according to the annex to the Council note. Art. 3 deals with area of competence of the Union.

Next Steps

The next meeting of COREPER to formally adopt the decision is expected to be held on 9 April, according to an EU source.  After the decision is formally approved by the COREPER, it should find its way to the Council on 14 April for final adoption, the source told Intellectual Property Watch.

The decision to be taken by the Council only concerns the signature of the treaty, the source said, and each EU member state will then have to ratify the treaty at the national level.

The release of the EU presidency said that “the Treaty requires of each contracting party to provide, within their national legislation on intellectual property rights, limitations or exceptions to the right of reproduction, the right of distribution, and the right of making available to the public, so as to facilitate the availability of works in accessible format copies for the benefit of beneficiary persons.”

“The Contracting Parties may decide to limit such restrictions or exceptions in cases where copies in accessible format for those beneficiaries, are not commercially available on reasonable terms for beneficiaries in their territory,” the release said.

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled was adopted in June 2013 (IPW, WIPO, 26 June 2014), and has been signed by 60 countries. The WIPO website on the Marrakesh Treaty contracting parties shows no ratifications yet.

The treaty will enter into force three months after 20 countries have deposited their instrument of ratification or accession, according to Art. 18 of the treaty.