Opinion CJEU about Marrakesh Treaty

14-02-2017 Print this page
IPPT20170214, CJEU, Opinion Marrakesh Treaty

COPYRIGHT - OPINION

 

The conclusion of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled falls within the exclusive competence of the European Union because the body of obligations laid down by the Marrakesh Treaty falls within an area that is already covered to a large extent by common EU rules and the conclusion of that treaty may thus affect those rules or alter their scope

 

112. It follows that the exception or limitation provided for by the Marrakesh Treaty will have to be implemented within the field harmonised by Directive 2001/29. The same is true of the import and export arrangements prescribed by that treaty, inasmuch as they are ultimately intended to permit the communication to the public or the distribution, in the territory of a Contracting Party, of accessible format copies published in another Contracting Party, without the consent of the rightholders being obtained.

 

122. It must be added in that regard that the Member States’ discretion has to be exercised within the limits imposed by EU law (see, by analogy, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 104), which means that the Member States are not free to determine, in an un-harmonised manner, the overall boundaries of the exception or limitation for persons with a disability (see, by analogy, judgment of 26 April 2012, DR and TV2 Danmark, C‑510/10, EU:C:2012:244, paragraph 36).


123. In particular, Member States may provide, in their law, for an exception or limitation for persons with a disability, but may do so only if they comply with all the conditions laid down in Article 5(3)(b) of Directive 2001/29, that is to say, the exception or limitation must cover only 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 (see, to that effect, judgment of 27 February 2014, OSA, C‑351/12, EU:C:2014:110, paragraph 39), conditions which, moreover, are not included in Articles 4 to 6 of the Marrakesh Treaty.


124. Furthermore, the discretion enjoyed by Member States in implementing an exception or limitation for persons with a disability cannot be used in such a way as to compromise the objectives of Directive 2001/29 which relate, as stated in recitals 1 and 9 thereof, to the establishment of a high level of protection for authors and to the smooth functioning of the internal market (see, by analogy, judgments of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 107, and of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 34).


125. That discretion is also limited by Article 5(5) of Directive 2001/29, which makes the introduction of the exception or limitation under Article 5(3)(b) of the directive subject to three conditions, namely that the exception or limitation may be applied only in certain special cases, that it does not conflict with a normal exploitation of the work and that it does not unreasonably prejudice the legitimate interests of the copyright holder (see, by analogy, judgments of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraph 58, and of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 110).
 

The rules of the Marrakesh Treaty which provide for the introduction of an exception or limitation to the rights of reproduction, distribution and making available to the public cannot be held to have a specific link with international trade such as to signify that they concern the commercial aspects of intellectual property,  the rules of the Marrakesh Treaty governing the export and import of accessible format copies do however relate to international trade

 

The conclusion of the Marrakesh Treaty does not fall within the common commercial policy (article 207 CJEU) because the cross-border exchange for which the Marrakesh Treaty provides cannot be equated with International Trade for commercial purposes
 

IPPT20170214, CJEU, Opinion Marrakesh Treaty

 

3/15 - ECLI:EU:C:2017:114