Marrakesh Treaty is no paper tiger: EU Commission sues 17 countries for non-compliance

On 26 November 2018, the EU Commission initiated proceedings for infringement of the Treaty on the Functioning of the European Union against 17 (out of 28) Member States for non-compliance with the Directive requiring the transposition into national law of the Marrakesh Treaty (Directive (EU) 2017/1564).

The Marrakesh Treaty is a WIPO-administered convention that was signed on 27 June 2013 and entered into force on 30 September 2016. The convention seeks to facilitate “the production and international transfer of specially-adapted books for people with blindness or visual impairment” (here). This was done by creating copyright limitations and exceptions to allow the creation of copies of protected works accessible to the visually impaired, when none is otherwise available.

As member of both WIPO and WTO, the EU has authority to sign and ratify treaties on behalf of its Member States and to then require their implementation into national law via EU instruments such as directives or regulations. In this case, the EU asked that national legislators reform their domestic copyright law by transposing the 2017/1564 Directive of 13 September 2017. The Directive requires that all necessary national measures be implemented by 12 October 2018. Not all member states complied by this deadline, whereby the EU Commission introduced infringement procedures against them for non-compliance. The list of the non-compliant countries is as follows: 

• Belgium
• Cyprus
• Czech Republic
• Germany
• Estonia
• Greece
• Finland
• France
• Italy
• Lithuania
• Luxembourg
• Latvia
• Poland
• Portugal
• Romania
• Slovenia
• UK

However, some of the countries named and shamed by the EU Commission,  such as the UK  and France, have in fact introduced exceptions to copyright to enable the making of accessible copies to the visually-impaired (UK: Section 31A to 31F of the Copyright, Designs and Patent Act 1988; France: Article L 122-5 para 7 of the French Intellectual Property Code).

In the UK, this was done in 2014  via secondary regulations  (The Copyright and Rights in Performances (Disability) Regulations 2014 (S.I. 2014/1384), regs. 1(1), 2(2)). In France, the Directive was transposed into national law with the introduction of government  decree on 27 February 2017 and the passing of a law on 5 September 2018.

 Indeed, both the UK and France went beyond what was required by the EU Directive and extended the exception to all disabilities (see Section 31F(2)). In May 2018, the UK had launched a consultation regarding the best approach for the implementation, concluding  that, overall, the measures taken to implement the Treaty were satisfactory (see Consultation Report – September 2018).

So what went wrong?

In a word, IPKat does not know. At the moment, the Commission has not published details regarding the claimed non-compliance by the countries listed. We cannot assume that the non-compliance proceedings were launched because the countries failed to introduce the exceptions in full, because countries can also be sanctioned if the scope of the exception implemented is too broad, so much so that it is disproportionately harmful to the interest of rightsholders. So we will have to wait and see what part of the implementation was deemed not up to scratch by the Commission.

Brexit means Exit …of the Marrakesh Treaty?

Not necessarily – the overwhelming majority of respondents to the UK consultation asked that the UK government ratify the Marrakesh in its own name, irrespective of its (current) EU membership. Although the UK is not individually bound by the Marrakesh Treaty, the UK government may choose to ratify and incorporate it post-Brexit in order to maintain the rights of disabled content users.

*** Update (30 November 2018) ***
The UK Intellectual Property Office confirmed that the EU Directive was implemented in the UK on time, as required. The organisation explains that the UK was listed as non-compliant by the Commission because the Member State was yet to issue a notification of implementation, which will now happen imminently. 

This Kat now wonders whether other countries are in the same position. Do comment below if you have any update or information to share with us on this topic.