Judge’s Opinion That EU Is Competent To Ratify Marrakesh Treaty Might Break Standstill 14/09/2016 by Catherine Saez, Intellectual Property Watch 5 Comments Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)The European Union has exclusive competence to ratify the Marrakesh Treaty on copyright exceptions for visually impaired people, the advocate general of the Court of Justice of the EU has found. This conclusion, which was well-received by representatives of the visually impaired, could speed up the ratification of the treaty by the EU. Braille The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled which was adopted in 2013 by members of the World Intellectual Property Organization. The 8 September opinion from the Court of Justice of the European Union (CJEU) found that the EU has exclusive competence to conclude the treaty. Some EU members such as France, Finland and Hungary, had challenged the EU competence for several reasons, which have been dismissed by the CJEU Advocate General Nils Wahl. According to an EU spokesperson, answering Intellectual Property Watch, “the conclusions by the advocate general are the first step in the procedure leading to the final Court’s opinion, which the Commission is eagerly waiting for in order to bring the ratification matter to its conclusion as soon as possible.” The road to the Marrakesh Treaty was peppered with resistance by developed countries, which at the start of the discussion at WIPO were reluctant to agree to the first international instrument providing limitations and exceptions to copyright. Several Members Challenge EU Competence According to CJEU advocate general’s opinion, the Czech Republic, Finland, France, Lithuania, Hungary, Romania and the United Kingdom “take the view that the Union does not have exclusive competence to conclude the Marrakesh Treaty. In particular, all those governments contend that the conditions laid down in Article 3(2) TFEU for the Union’s competence to become exclusive are not fulfilled.” Article 3(2) states: “The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.“ Those governments, however, said the opinion, have different views of why the Union does not have exclusive competence. Non-Commercial Aspects of Intellectual Property For example, “the Czech, French, Hungarian and Finnish governments do not accept that the cross-border exchange of accessible format copies takes place in a commercial framework,” the advocate general said. However, he found that “those parties seem to take the view that goods exchanged on a non-profit basis would be covered by the concept of ‘non-commercial aspects of intellectual property’ and, as a consequence, would fall outside the common commercial policy.” Further, he said that this argument would be a misinterpretation of Article 207 TFEU. “That provision does not exclude from its ambit transactions or activities of a non-commercial nature. Indeed, the fact that some goods or services may, under certain circumstances, be exchanged for purposes other than for making a profit (including, for example, when supplied free of charge) does not imply that those goods or services are not traded,” he said. “What Article 207 TFEU excludes from the ambit of the common commercial policy are only the non-commercial aspects of intellectual property rights. This means sectors of intellectual property law which are not strictly or directly concerned with international trade. That is clearly a residual category.” The AG said intellectual property rules are meant to confer “certain exclusive rights regarding the exploitation of creations of the intellect in order to foster creativity and innovation.” Those exclusive rights “are nothing but sui generis forms of monopolies which may limit the free circulation of goods or services. Thus, by their very nature, intellectual property rules are mostly trade-related,” he added. As reported by the opinion, “the Italian Government stated that the ‘remuneration’ referred to in Article 4(5) of the Marrakesh Treaty should not be understood as a real ‘remuneration’ but more as a mere compensation for the copyright owners.” Links with the TRIPS Agreement The French, Hungarian, Romanian and Finnish governments emphasised that the Marrakesh Treaty was negotiated within WIPO, an agency of the United Nations “which does not have as its mission the liberalisation and promotion of trade,” the opinion said. “The Hungarian and United Kingdom Governments also point to the fact that the Marrakesh Treaty, arguably, only has weak links to the TRIPS Agreement [World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights],” he said. Wahl said that the common commercial policy is one of the main pillars of the Union’s relations with the rest of the world. According to Article 207(1) TFEU, he said,” that policy must ‘be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies.'” A number of central provisions of the Marrakesh Treaty, such as cross-border exchange, and importation of accessible format copies have a specific link to international trade, the opinion said. Other provisions of the treaty, in particular Article 4 (National Law Limitations and Exceptions Regarding Accessible Format Copies) also are intended to facilitate international trade by standardising certain rules on the availability, scope and use of intellectual property rights among the contracting parties, it said. The advocate general said that the Marrakesh Treaty pursues one of the objectives of the TRIPS, and the treaty intends to promote, facilitate and govern trade in a specific type of good: accessible format copies. Marrakesh Treaty and EU Copyright Directive According to the opinion, “It is clear that the conclusion of the Marrakesh Treaty will require the EU legislature to amend Article 5 [Exceptions and limitations] of Directive 2001/29.” Directive 2001/29 deals with the harmonisation of certain aspects of copyright and related rights in the information society. “Currently, paragraph 3(b) of that provision leaves it to the Member States whether to provide exceptions or limitations in case of ‘uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability’”. “Thus, in order to comply with the rules included in the Marrakesh Treaty, the exceptions and limitations provided for the benefit of a specific category of persons with a disability (persons who are blind, visually impaired or otherwise print disabled) can no longer be optional and would have to be made mandatory,” said the opinion. What the Commission is Saying European Commission Spokesperson Nathalie Vandystadt told Intellectual Property Watch that the Commission is seeking rapid ratification of the treaty, which is currently kept on hold by differences of opinion regarding competences to ratify. “The Commission’s ratification proposal, presented in October 2014, is not progressing in the Council due to a blocking minority of Members,” she said. “It is in order to help bringing the current standstill to an end that the Commission has asked the Court of Justice to provide a legal opinion on the matter.” “The conclusions by the Advocate General are the first step in the procedure leading to the final Court’s Opinion, which the Commission is eagerly waiting for in order to bring the ratification matter to its conclusion as soon as possible,” said Vandystadt. “Separately,” she said, “the Commission will shortly present proposals to implement the Treaty in EU law – a process that is separate from the ratification and serves the purpose of adapting EU law to what is required by the Marrakesh Treaty.” World Blind Union Hails Victory According to the European Blind Union (EBU), the opinion by Wahl is a great victory as it takes away the excuses used by some member states to block the ratification of the Marrakesh Treaty. What the EBU wants, said David Hammerstein for the EBU, is a fast-track ratification process. It also wants that the proposal made by the Commission, which is expected on Thursday, be accepted by the European Parliament and member states in its first reading so that in the next three or four months there can be a final ratification of the Marrakesh Treaty by the EU. Image Credits: Flickr-marlo-sanchez-bueno Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related Catherine Saez may be reached at email@example.com."Judge’s Opinion That EU Is Competent To Ratify Marrakesh Treaty Might Break Standstill" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.