30 November 2018Copyright

EU Commission targets 17 states over Marrakesh Treaty non-compliance

The European Commission has instigated non-compliance proceedings against 17 member states, including the UK, for failing to tell it that they have transposed copyright provisions of the Marrakesh Treaty into national law.

Under the Marrakesh Treaty, copyright limitations and exceptions allow for the production and transfer of copies of protected works in the form of specially-adapted books.

The notices of non-compliance were entered on November 22 (with letters of formal notice being sent on November 28) against Belgium, Cyprus, Czech Republic, Germany, Estonia, Greece, Finland, France, Italy, Lithuania, Luxembourg, Latvia, Poland, Portugal, Romania, Slovenia, and the UK.

According to the Commission, the 17 member states infringed the Treaty on the Functioning of the European Union by not communicating to the Commission the national measures that they have taken to transpose the directive related to the Marrakesh Treaty into domestic law.

Non-compliance proceedings can be brought when members have failed to transpose a directive in full, when the scope of the directive transposed is too broad, or where the member state has transposed the directive but failed to communicate this to the Commission.

The Marrakesh Treaty, which is administered by the World Intellectual Property Organization (WIPO), entered into force in 2016, and national legislators were asked to transpose directive 2017/1564 (regarding its provisions) into national copyright law by October 12, 2018.

On this date, when the EU ratified the treaty, commissioner for the digital economy and society Mariya Gabriel said: “Today marks an important breakthrough for more inclusiveness for blind and visually impaired in the EU.

“They not only gain easier access to books and other published works necessary for work or pleasure, but can also exchange them across the EU. Without the prior authorisation of rights holders, fast access to more and more diverse content will be guaranteed.”

But some of the 17 countries identified as non-compliant—such as the UK—have already transposed the directive into national law.

For example, the UK implemented The Copyright and Rights in Performances (Disability) Regulations in 2014.

Speaking to WIPR yesterday, a spokesperson for the UK Intellectual Property Office (IPO) said: “The UK’s listing as non-compliant was not related to our implementation of the directive, but to the fact that we were yet to notify the Commission that we had implemented it on time. Notification is now taking place.”

The spokesperson noted that is common practice for the Commission to instigate such proceedings when a member state is late in notifying it.

Also speaking to WIPR, Christopher Williams, partner at Blake Morgan in London, said that the Marrakesh Treaty is “broadly very popular and the UK appears to have gone above and beyond what was strictly required of it by the directive”.

As the IPO had said, Williams explained that the trigger for the action against the UK may be “little more than a failure in housekeeping” in the form of the UK not providing the Commission with notice of its compliance.

“It is on balance unlikely that the infringement action concerns a substantive failure of the UK that cannot be promptly remedied,” Williams concluded.

A recent UK government publication, dated October 26, confirmed that the UK had implemented the directive covering the Marrakesh Treaty.

Earlier this year, the UK launched a consultation which determined that the measures it had taken to implement the directive were satisfactory. It also suggested that the UK government would ratify the Marrakesh Treaty once it has left the EU, on March 29, 2019.

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14 February 2017   The EU can ratify the Marrakesh Treaty without the participation of member states, according to Europe’s highest court.