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What to Make of the Government Response to the Marrakesh Copyright Consultation

Back in May, the Intellectual Property Office sought views on how the UK should approach the implementation of the EU’s Regulation and Directive implementing the Marrakesh Treaty on copyright across Europe. Here, accessibility expert and UKAAF board member Michael Lewington summarises the most important aspects of response – and why this is good news for visually impaired and print disabled people

The Marrakesh UN agreement aims to improve access to published works for persons who are blind, visually impaired or otherwise print disabled, and presents an unprecedented opportunity for access to printed works for this community. The Treaty achieves this through international harmonisation of copyright exceptions, allowing the creation and supply of accessible format versions of copyright works, under certain conditions, without infringing copyright.

We now have insight into what HMG says it would like to do about Marrakesh in the UK, and so I am now summarising the main points of interest in its recently-published response.

Exceptions

Current UK disability exceptions cover all types of disability that prevent a person from accessing a copyright work and cover all types of copyright works. The Government proposes changes made to the Copyright Designs and Patents Act (CDPA) would, where possible, be applied to all forms of disability which prevent a person from accessing a copyright work and all types of work, rather than just those specified in the Directive.

This idea has been supported by almost all of the respondents, and it’s good news as all visually impaired and print disabled people will benefit from the Treaty, irrespective of their disability.

Obligations on authorised entities

An “authorised entity” is a body permitted to make accessible format copies and supply them to beneficiaries of the Treaty. It has been agreed to simply transpose the obligations from the Directive into the CDPA. Again, this is good news for authorised entities who already, as part of the UK exceptions, comply with the obligations.

Commercial availability

The EU version of Marrakesh does not allow the UK to retain its current “commercial availability” restrictions, under which the exceptions for people with visual impairment only apply when accessible copies in a particular format are unavailable on the commercial market. The Government position was to remove this provision, but to seek further information on the potential impact of doing so. Most respondents to the consultation did not, or were unable to, provide specific evidence of costs or impact.

Authorised entities who rely on the exceptions are highly unlikely to make accessible-format copies where they are commercially available, as it is not cost-effective to do so. Therefore, removing the commercial availability clause would not in practice have a negative impact on rightholders. This is a welcome position for authorised entities, as it can be time consuming and difficult to establish the commercial availability of accessible format copies in other countries: they can now provide accessible formats to visually impaired and print disabled people without the necessity for endless availability checks.

Compensation

Under the Directive the UK had the option to provide a compensation scheme for any harm caused to rightholders by the use of the exception by authorised entities. The UK does not currently provide for compensation; however, with the removal of the commercial availability clause, the Government wished to establish whether a compensation scheme would be warranted.

This was the main area where there was a divergence of views related to the removal of the commercial availability restrictions and policy options for compensation. In the end there was limited/lack of robust evidence of genuine harm here to rightholders, and as a result the Government has chosen not to implement any form of compensation scheme. Instead, there will be guidance to authorised entities making it clear as to when it is appropriate to make an accessible copy and who should be entitled to access them will be issued, and a review clause to assess the impacts of this decision five years following implementation.

The introduction of a compensation scheme would have imposed serious financial restrictions on authorised entities and their beneficiaries, so this is a most significant and indeed welcome outcome.

Brexit

The Directive and Regulation will enter into force before the UK leaves the EU – however, the Government intends that the UK will remain party to the Marrakesh Treaty following EU exit, and will ratify the Treaty in its own name at the appropriate point.

The major concern is there should be no gap in legal provision. On September 24th the Department for Business, Energy & Industrial Strategy published four guidance notices covering intellectual property, one of which was Copyright if there’s a ‘No Deal’ Brexit. The notice makes clear that, “The UK intends to ratify the Marrakesh Treaty after exit but ratification will not have taken place before 29 March 2019. Between exit and the point of ratification, businesses, organisations or individuals transferring accessible format copies between the EU and UK may not be able to rely on the EU Regulation.”

Nonethless, authorised entities and organisations must, we believe, maintain pressure on the Government to ratify the Treaty as soon as possible to ensure UK visually impaired and print disabled people are not disadvantaged in comparison to other beneficiaries in countries that have ratified the Treaty.

The author is Mike Lewington, Chief Executive of Calibre Audio Library [www.calibre.org.uk], a UK charity that provides a subscription free service of over 10,500 unabridged audio books for adults and children with sight problems, dyslexia or other disabilities who cannot read print.

 He is also a board member of UKAAF. 

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