© Crown copyright 2019
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This publication is available at https://www.gov.uk/government/publications/changes-to-copyright-law-to-implement-the-marrakesh-directive/changes-to-copyright-law-to-implement-the-marrakesh-directive
1. What is the Marrakesh Treaty
The Marrakesh Treaty is an international legal instrument which aims to improve visually-impaired and print-disabled people’s access to copyright works around the world. It does this by requiring its parties to provide exceptions to copyright allowing the making of accessible copies and the transfer of such copies across borders.
In 2017, the European Union (EU) agreed a Directive and a Regulation to implement this Treaty. EU Directive 2017/1564 and Regulation 2017/1563 (respectively, the Marrakesh Directive and Regulation) aim to ensure EU compliance with the Marrakesh Treaty. This EU legislation also enabled the EU to ratify the Treaty. This legislation came into force on 11 and 12 October 2018 respectively.
The government consulted on how the UK should approach implementing the Marrakesh Directive between 8 May and 19 June 2018. A government response to this consultation was published on 10 September outlining the UK’s approach to implementation. The Copyright and Related Rights (Marrakesh Treaty etc.) (Amendment) Regulations 2018 were subsequently laid before Parliament and entered into force on 11 October.
This guidance will set out certain aspects of the approach taken in the UK, as highlighted by stakeholders during the consultation process. This includes further information on key definitions in the Directive, how the changes will impact affected groups, and the obligations placed on authorised bodies.
Prior to the legislation to implement the Directive, the UK already provided exceptions to copyright for the benefit of disabled people. These were provided under Sections 31A to 31F inclusive of the Copyright, Design and Patents Act 1988 (“the CDPA”) and exceptions to performers rights in paragraphs 3A to 3E of Schedule 2 of the CDPA. These exceptions applied to all types of copyright works and all types of disability which affected access to copyright works. The aim was to improve outcomes for a wide range of people who were unable to access copyright works due to their disability. There were two separate exceptions in UK law. One allowed a disabled person, or someone acting on their behalf, to make an accessible copy of a work in their possession. The other allowed authorised bodies to make and supply accessible copies to beneficiaries. Whilst these exceptions are broadly similar to those provided in the Marrakesh Directive, some changes were needed to ensure UK law was fully compliant with the Directive.
The government’s implementation
Key elements of the UK’s implementation of the Marrakesh Directive include:
An accessible copy of a work can be made for a disabled person with any form of disability that prevents them from accessing a copyright work, and all types of work. There are limited instances where this is not the case, notably the sui generis database right. The Database Directive does not provide sufficient discretion to extend the new exceptions to those types of work and disabilities not covered by the Marrakesh Directive. Additionally, any provisions connected to the transfer of copies from other countries which are party to the Treaty will need to apply only to copies made for visually impaired or print disabled people. This reflects the scope of the Treaty and the EU’s implementing legislation.
The rules applying to authorised bodies, that is those who can make and supply accessible copies, are in line with those in the Marrakesh Directive. This is discussed further in Section 5 of this guidance.
The permitted acts outlined by the disability exceptions are consistent with those in the Marrakesh Directive.
There are no commercial availability restrictions on when an accessible copy can be made.
2. What does this mean for different groups
What this means for disabled persons
- disabled persons, or those acting on their behalf, are able to make copies of a copyright protected work to which they have lawful access. They may transfer a work into a different format which allows them to access the work more easily;
- accessible copies can be made by or on behalf of a disabled person even if a copy can be obtained commercially;
- disabled persons can approach authorised bodies to obtain accessible copies. For example, a visually impaired person could approach an authorised body like the Royal National Institute for the Blind to obtain a large print copy of a book
What this means for authorised bodies
- authorised bodies can still make accessible copies, though the rules applying to them are slightly different. This is discussed further in Section 5 of this guidance;
- an accessible copy of a work can be made even if an accessible copy is already commercially available However, given the resource implications involved in creating new accessible copies of works, the government does not expect authorised bodies to make accessible copies of works where they are already available. This means that where, for example, a publisher already sells a braille copy of a book, it is expected that an authorised body would obtain a copy commercially rather than make their own
- in order to be consistent with the Marrakesh Directive, authorised bodies are now able to make, communicate, make available, distribute and lend” accessible copies as opposed to “make and supply”. Authorised bodies can do this with other authorised bodies in other EU Member States. The government does not anticipate any change in the activities of most authorised bodies as a result of this change
What this means for rightholders
- accessible copies of copyright works can be made for disabled persons under the exceptions provided for in Sections 31A to 31F CDPA, without remuneration or permission of the rightholder, solely for that purpose
- this is regardless of whether there is a commercially available copy already but, as outlined below, certain terms need to be satisfied for the copy to be made legally under the exception
- if these terms are not satisfied then an infringement of copyright could occur
3. Key definitions
The definition of an accessible copy is one which enables disabled persons to access a work as feasibly and comfortably as a person who is not a disabled person. It may include facilities for navigating around the version of the work. However, it must not include any changes to the work which are not necessary to overcome the problems suffered by the disabled persons for whom the accessible copy is intended.
Examples of accessible copies include braille, large print or audio versions of a book, works prepared for text reading software, or works produced in particular fonts that are easier to read.
Who is a disabled person
The government has an overall policy not to discriminate between people with different types of disability. In line with this, changes to the disability exceptions have, where possible, been applied in general. This is instead of providing separate provisions for people with visual impairment or print disabilities and people with other disabilities. As such, most of the changes required by the Directive have been applied to the UK’s disability exceptions as a whole. One exception to this relates to The Copyright and Rights in Databases Regulations 1997, where the changes apply only to Marrakesh beneficiaries, that is those who are blind, visually impaired or otherwise print disabled.
According to the CDPA1, a disabled person has a physical or mental impairment which prevents the person from enjoying a copyright work to substantially the same degree as a person who does not have that impairment. “Disability” is to be understood accordingly. The word “substantially” has been inserted to align the definition with that in the Directive at Article 2(2).
The Marrakesh Directive defines an authorised body as one providing education, instructional training, adaptive reading or information access to a disabled person in addition to public institutions or non-profit organisations. The government considers that the existing definition for an authorised body in Section 31F(6) CDPA includes all of these types of entities and has been retained unchanged.
Accordingly, an authorised body is defined as:
- an “educational establishment”, as defined at section 174, which includes any school (further defined in relevant education legislation in England & Wales, Scotland and Northern Ireland (s.174(3)) and any other such establishment that may be made as such by order; and/or
- an entity not conducted for profit
In line with the Marrakesh Directive, there must be “lawful access” to a work in order for the disability exceptions to apply. The government considers that “lawful access” encompasses both lawful possession and other lawful access as it combines both the direct and indirect aspects of the current terms. For example, a disabled person may have direct physical possession of a work, such as when they own a physical copy of a book. Alternatively, they may have access to a work, such as when they have an online subscription allowing them to access books electronically or borrowing an electronic copy from a library. “Access” could be applied in both situations; where a disabled person has actual physical possession of the work or may access it remotely by way of a digital copy.
Access to a work must be lawful in order to benefit from the exception. If access to a work is not lawful, then making an accessible copy from the work would be an infringement of copyright. Any such accessible copy would be considered an infringing copy. For example, if a disabled person made an accessible copy of an eBook using an eBook subscription they did not pay for as per the terms and conditions, then that accessible copy would be considered an infringing copy.
4. Legal considerations when making and dealing with accessible copies
As discussed above, certain legal requirements must be met in order for the disability exceptions to be relied upon when making or dealing with an accessible copy. These requirements include:
- accessible copies of copyright protected works can be made only from lawfully accessed copies. This would include copies legitimately purchased or licensed
- an accessible copy can only be made by a disabled person or authorised persons or bodies acting on their behalf
- the copy can only be made for the personal use of a disabled person. Accessible copies cannot be made, communicated, made available, distributed or lent to a person that is not a disabled person as per these exceptions
- bodies that make, communicate, make available, distribute and lend accessible copies must fulfil the definition of an “authorised body” outlined in Section 31F CDPA
- an accessible copy must only change a copyright work to the extent that is necessary to convert it to an accessible format
- the making, communicating, making available, distributing or lending of an accessible copy by an authorised body must be done on a non-profit basis. This means that, for example, an authorised body must not make a profit when they make and distribute an accessible copy of a book (including by selling it above cost in an online shop)
- authorised bodies can make accessible copies on behalf of other authorised bodies or disabled people in other Member States of the EU
When relying on the disability exceptions to make or transfer accessible copies, users will need to satisfy all the terms of the relevant exception(s) outlined in the CDPA. If these conditions are not satisfied, making an accessible copy will likely be considered an infringement of copyright, and the subsequent copy an infringing copy.
Article 3 of the Marrakesh Directive provides that the disability exceptions only apply in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder. This is the so called “three step test” outlined in Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works and which applies to all copyright exceptions under EU law.
In light of the three step test, it is important that authorised bodies respect the investment publishers make in catering to the disabled market, using their best judgement on when it is appropriate to make an accessible copy of a work. This may include an assessment of their available resources, and/or whether an accessible copy of the work already exists.
While there are very limited instances where lawful access might be gained through another copyright exception, it is expected that this will rarely happen. Copyright exceptions often contain their own limitations and these must be observed in order for the exception to apply. For example, the text and data mining exception outlined in section 29A2 stipulates that any copy made under the exception cannot be transferred to any other person unless authorised by the rightholder. A similar condition of the disability exceptions is that any accessible copy is made solely for the personal use of the disabled person. Copyright exceptions are also often linked to purpose, where copies can only be made for a specific stated purpose.
Additionally, any exploitation under an exception is subject to the three step test and should not conflict with the normal exploitation of works or other subject matter and not unreasonably prejudice the legitimate interests of the rightholders. Similarly, licences may preclude the use of copies made under copyright exceptions. Those looking to make copies of works should ensure that they do not breach licence clauses like this.
The government will continue to review these exceptions and, should evidence of actual harm to rightholders emerge, may consider making changes to how they operate.
5. Obligations placed on authorised bodies
Article 5 of the Directive places a series of obligations on authorised bodies should they wish to make, communicate, make available, distribute and lend accessible copies without infringing copyright. The obligations, along with suggested activities authorised bodies could take, where appropriate, are outlined below:
(a) distributes, communicates and makes available accessible format copies only to beneficiary persons or other authorised bodies:
- check that the disabled person to whom a copy is being distributed, communicated or made available to is a legitimate disabled person as per the definition outlined in section 31F CDPA. This could include asking the person to sign a declaration, or otherwise confirm that they are entitled to receive an accessible copy of a work under these exceptions
- check that any authorised body a copy is being distributed, communicated or made available to is a legitimate authorised body as per the definition outlined in section 31F CDPA. This could include contacting the authorised body in question to confirm this or checking their website, where they should be providing information on how they comply with these obligations
(b) takes appropriate steps to discourage the unauthorised reproduction, distribution, communication to the public or making available to the public of accessible format copies:
- provide information and resources on how accessible copies can and cannot be made and shared. This could take the form of information on websites, leaflets or other media, and use of metadata. Alternatively, or in addition, authorised bodies could supply this information with any accessible copies they reproduce, distribute, communicate or make available to the public
- increase co-operation and share best practice between authorised bodies, rightholders and beneficiaries to increase understanding of, and respect for, copyright protection and the scope of these exceptions
(c) demonstrates due care in, and maintains records of, its handling of works or other subject matter and of accessible format copies:
- publish information on how records are maintained and copyright works are handled
- publish a list of available accessible copies
- provide details of any professional codes of conduct or other legislation related to their activities that are relevant to records management and the handling of copyright works
(d) publishes and updates, on its website if appropriate, or through other online or offline channels, information on how it complies with the obligations laid down in points (a) to (c).
- we consider that this provision is self-explanatory
(e) Authorised bodies must provide the following information in an accessible way, on request, to beneficiary persons, other authorised entities or rightholders:
- the list of works or other subject matter for which it has accessible format copies and the available formats; and
the name and contact details of the authorised entities with which it has engaged in the exchange of accessible format copies
- requests for the information outlined should be dealt with in a reasonable timeframe
- the information supplied should be as comprehensive as can reasonably be expected
- authorised bodies and rightholders may wish to consider working together to develop best practice
Section 31F(2) CDPA. ↩
Section 29A(2) CDPA states: Where a copy of a work has been made under this section, copyright in this work is infringed if (a) the copy is transferred to any other person, except where the transfer is authorised by the copyright owner, or (b) the copy is used for any purpose other than that mentioned in subsection (1)(a), except where the use is authorised by the copyright owner. ↩