Introduction
Directive (EU) 2017/1564 (“Marrakesh” Directive) introduces an exception to copyright for two reasons.
- First, to increase the availability of printed works in accessible formats for persons with print disabilities. These include Braille, large print, adapted e-books, audio books and radio broadcasts.
- Second, to improve the circulation of these ‘accessible format copies’ within the internal market.
The Directive and the accompanying Regulation brought the necessary changes to the European Union (EU) legislation.
The Marrakesh Treaty
It allows people with print disabilities to access books and other print material in formats that are accessible to them.
Implementation of the Marrakesh Treaty in EU Law
The Directive and Regulation published in the Official Journal, on 20 September 2017. The deadline for Member States to transpose the directive into national law ended on 11 October 2018. The Regulation entered into application on 12 October 2018.
The Directive
Establishes a mandatory exception to copyright and related rights on permitted uses of certain works (.pdf) and other subject matter. This benefits persons who are blind, visually impaired, or otherwise print disabled.
The Regulation
Provides for a copyright exception (.pdf) for accessible format copies of certain works and subject matter. This facilitates cross-border exchange between EU Member States and third countries who are parties to the Marrakesh Treaty. This benefits persons who are blind, visually impaired or otherwise print-disabled.
List of authorized entities in Member States
The Member States have an obligation to provide the Commission with the contact information they have received from authorized entities.
The term ‘authorized entity’ means an entity who is authorized or recognized by a Member State. The entity provides education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis.
The entity also includes a public institution or non-profit organization. They provide the same services to beneficiary persons, institutional obligations or as part of public-interest missions.
European Commission Staff Working Document
The Commission has published a report on the availability of copyright protected works in accessible formats for persons with disabilities. This is beyond what was provided for in the Marrakesh Directive. Some examples are: images, films and other audio-visual content, video games, phonograms, sculptures. The Commission has also proposed changes to extend the scope of application of the ‘Marrakesh’ Directive accordingly.
In order to prepare the Staff Working Document, the Commission ran a targeted consultation to gather evidence from stakeholders. These include: persons with disabilities, organizations acting on their behalf, as well as right-holders, audio-visual content producers, distributors, service providers.
It looks at the current availability of accessible formats and access to copyright protected works not currently catered for.
The Commission submits the Staff Working Document to the European Parliament, the Council and the European Economic and Social Committee.
The Commission will carry out an evaluation of the “Marrakesh” Directive, to issue a report by 11 October 2023. The report takes into account the views of relevant civil society actors and of non-governmental organizations. This includes organizations representing persons with disabilities and those representing older persons.
Applicable Legal Framework
The relevant EU copyright rules is in Article 5(3) (b) and (4) in the information society (“InfoSoc” Directive). They are applicable to works and other subject matter not covered by the “Marrakesh” Directive.
Article 5(3) (b) allows Member States to introduce limitations to the rights of reproduction, communication, and availability.
Article 5(4) allows Member States to introduce exceptions to the right of distribution for the benefit of persons with disabilities.
Member States have turned the Directive into national law
The Member States have adopted exceptions covering works and subject matter and/or disabilities beyond those covered by the “Marrakesh” Directive.
Persons with disabilities
Some of the Member States where the beneficiaries of the exceptions are in general persons with disabilities are:
Austria, Belgium, Bulgaria, Croatia, Cyprus, Estonia, Germany, Hungary, Lithuania, Luxembourg, Malta, the Netherlands, Slovenia and Spain.
Definition of beneficiaries
Certain Member State have chosen to define the beneficiaries by reference to that person’s ability.
- In Finland, beneficiaries are “persons who, due to an injury, are unable to use works in the ordinary way”.
- In Latvia and Sweden, beneficiaries are persons with any limitation of functional ability.
National Exception
Certain Member States have more detailed provisions concerning the application of the national exception.
- Belgium provides an exception from copyright and related rights for reproduction, communication, and reproduction of broadcasts by certain institutions.
Compensation to right holders
Differences exist in the compensation granted to right holders.
- Austria, Belgium, and Finland provide financial compensation for authors, on the basis of exception and limitation for persons with disabilities.
- Finland provides compensation to authors when an authorized institution distributes a copy on a permanent basis.
Availability of accessible formats: current situation
Accessible formats can be either ‘born accessible’ or ‘accessible format copies.’
There were differing opinions among stakeholders:
- Audiovisual works (e.g. films, TV series, and television programs), audiobooks and printed works were mostly available in accessible formats.
- Subtitling/closed captioning is available both commercially and as ‘accessible format copies.’
The consultation also asked stakeholders to provide information on the existence of potential obstacles to accessing content in accessible formats. Almost all stakeholders considered that there are obstacles to accessing content in accessible format.
- The obstacles more frequently identified concerned cost and lack of availability in Member States.
- Other obstacles are lack of responsiveness by producers of protected content and lack of information.
Stakeholders, in particular organizations representing persons with disabilities, reported some examples of specific difficulties related to access to accessible formats:
- Limited availability of film screenings in cinemas adapted to the need of visually / hearing impaired people.
- Easy-to-read formats rarely adapted to the needs of persons with disabilities other than print-related.
- Mainstream videogames are incompatible with a screen reader. It is necessary for blind or visually impaired people to read the displayed content or text.
- Artificial intelligence (AI) tools are insufficient to generate accurate image descriptions.
- Accessibility issues concerning cultural exhibitions.
Initiatives reported by Member States to facilitate the availability of accessible formats
Member States provided information about the measures to ensure better availability of works in accessible formats.
Germany and the Netherlands encourage the availability of accessible formats. The national film funds include conditions for accessible films to receive financial support.
France has quality charters and ministerial guides defining the roles of producers, distributors and audiovisual service providers. This is to ensure accessibility of works and exhibitions.
Estonia created a task force to issue a report and provide suggestions to improve accessibility.
The circulation of accessible formats across Member States
The consultation sought to determine whether and to what extent accessible formats circulate among Member States.
A third of the respondents mentioned that the works they produce circulate in other Member States. A similar proportion indicated that their works do not.
Organizations representing the interests of persons with disabilities indicated that they exchange ‘accessible format copies’ to some extent.
Issues raised include:
- The circulation of accessible e-books and audiovisual works is among Member States that are part of the same language area.
- Challenges for audiovisual works are the multi-platform environment and different standards among Member States.
- Authorized entities should be able to exchange accessible formats cross-border for works and disabilities not covered by the “Marrakesh” Directive.
- Review the copyright exceptions to allow cross-border exchange of subtitles and audio description.
Cross-border transfer of a copy is not hampered if the exceptions in the Member State cover the acts of reproduction and distribution to the public.
If divergences exist between national laws, they are likely to make exchange of copies across borders more difficult.
Possible additional needs for works in accessible formats for persons with disabilities not covered by the “Marrakesh” Directive
The stakeholders who replied to the targeted consultation considered that persons with disabilities need to have more accessible formats available.
Organizations representing persons with disabilities mentioned the need to have more audio-visual works, including educational and informative content.
Organizations representing persons with disabilities also mentioned that audio-visual material incorporated into news articles are mostly not accessible.
Stakeholders representing the interests of persons with disabilities and cultural institutions mentioned the need for image and photo descriptions.
Member States focused mainly on the availability of audio-visual works to persons with disabilities. Member States highlighted the following issues, in some cases reporting positions expressed by their stakeholders:
- Insufficient subtitles in own language;
- Limited availability of audio description programs;
- Quality of subtitles;
- Lack of diversity of accessible audio-visual programs;
- Lack of accessibility of films distributed in cinemas, including through audio description;
- Limitations in the online distribution of films in sign language to people with disabilities;
- Lack of accessibility of videogames
Conclusion
The evidence gathered for the preparation of European Commission report suggest a diverse landscape. This includes the availability of accessible formats for persons with disabilities not covered by the “Marrakesh” Directive.
Almost all Member States have implemented these optional exceptions and limitations, for the benefit of persons with disability. These cover works and disabilities beyond those addressed by the “Marrakesh” Directive.
The feedback received from the Member States mainly concerned audiovisual content. This content seems to be comparably more accessible than for example images, architectural or sculptural works.
But at the same time, organizations representing persons with disabilities report significant gaps. Cross-border exchanges of audiovisual formats appear to be mostly happening between Member States sharing the same language.
The consultation asked stakeholders, users, and content producers to identify possible obstacles that make it difficult for them to have or to provide access to accessible formats.
Stakeholders mention practical aspects such as costs, insufficient public funding or government incentives, lack of responsiveness by producers, and lack of information. Other practical issues include interoperability, lack of appropriate distribution channels, and lack of demand.
