(May 23, 2017) On February 14, 2017, the Court of Justice of the European Union (CJEU), in line with a CJEU Advocate General’s opinion, ruled that the EU enjoys exclusive competence in defining copyright rules concerning materials intended for use by people with disabilities. The Court stated that the Treaty falls, to a large extent, within an area covered by common EU rules.  (CJEU, Opinion 3/15 of the Court, ¶ 129 (Feb. 14, 2017), CURIA; CJEU, Opinion Procedure 3/15, Opinion of Advocate General Wahl (Sept. 8, 2016), CURIA.)

This matter is covered by the Marrakesh Treaty (MVT) of 2013, which was signed by the EU in 2014 and entered into force in September 2016.  (Summary of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (MVT) (2013), World Intellectual Property Organization (WIPO) website; MVT, WIPO (June 27, 2013).) To date, more than 80 countries have signed the MVT and 27 have ratified it. (WIPO Administered Treaties: Marrakesh VIP Treaty, WIPO website (last visited May 19, 2017).)

To implement the MVT, the European Commission (the EU executive body) has put forward two legislative proposals:

• Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market, which would introduce a mandatory copyright exemption for books for the visually impaired (2016/0280(COD) (Sept. 14, 2016), European Parliament website).
• Proposal for a Regulation of the European Parliament and of the Council Laying Down Rules on the Exercise of Copyright and Related Rights Applicable to Certain Online Transmissions of Broadcasting Organisations and Retransmissions of Television and Radio Programmes, which is aimed at facilitating cross-border exchange of such transmissions between the EU and third countries that are parties to the MVT (2016/0284(COD) (Sept. 14, 2016), European Parliament website).

The CJEU Ruling

The case upon which the Grand Chamber of the CJEU based its Opinion arose from the 2001 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, which allowed Member States to introduce optional exceptions and limitations to the rights of reproduction and communication for the benefit of persons with disabilities. (Directive 2001/29/EC, art. 5(3)(b), EUR-LEX.)

As part of the body of law administered by the World Intellectual Property Organization, the MVT requires the contracting parties to facilitate access to published works for persons who are blind, visually impaired, or otherwise print disabled and to introduce in their national legislation provisions that would allow certain entities such as non-profit organizations or government institutions to reproduce or distribute a wider choice of books published in adapted formats, such as braille or large lettering, or in audio digital recordings. The Treaty also provides for cross-border exchange of books in adapted formats.  (MVT, art. 5 on Cross-Border Exchange of Accessible Format Copies and art. 9 on Cooperation to Facilitate Cross-Border Exchange.)

The MVT was presented for ratification by the European Commission, but the ratification faced delays because of a blocking minority of Member States in the Council who questioned the timing of the ratification and the very EU competence to ratify it (i.e., whether it was an exclusive competence of the EU or shared competences of the EU and the Member States).  They argued that the MVT falls within the area of shared competences and therefore must be concluded not only by the Union but by all Member States.  (EU Council Decision 8305/14 ADD1, P1 39, Apr. 9, 2014, EUROPA.)

The European Commission asked the CJEU to provide its opinion on whether the EU itself (without the participation of the Member States) could conclude the Marrakesh Treaty.  Eight Member States – Finland, France, Hungary, Italy, Lithuania, the Czech Republic, Romania, and the United Kingdom – took part in the opinion procedure claiming that the EU does not have exclusive competence to conclude the MVT. (CJEU, Opinion 3/15 supra, ¶¶ 40 & 50.)

The CJEU ruled in favor of the European Commission and asserted that the conclusion of the Marrakesh Treaty does fall within the exclusive competence of the European Union. (Id. ¶ 60.)

Prepared by Micaela Del Monte, Law Library Visiting Research Fellow, in collaboration with Peter Roudik, Director of Legal Research.

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