With its Opinion 3/15 issued on 14 February 2017, the Court of Justice of the European Union stated on the competence of the European Union to conclude the Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired, or otherwise print disabled (“Marrakesh Treaty”).

This Treaty addresses the thorny issue of the exceptions to Copyright Law granted to visually impaired subjects. Since these exceptions have a significant impact on the industry of audiobooks and are liable to put specific burdens on publishers the conclusion of the Marrakesh Treaty became the battlefield of opposite interests and lobbies.

Adopted during the Diplomatic Conference of the World Intellectual Property Organization held in Marrakesh on 17-28 June 2013, the Marrakesh Treaty is aimed at facilitating the access to the culture to visually impaired persons. This important goal is pursued through the imposition on the contracting parties of certain obligations in order to harmonize exceptions and limitations to copyright and to facilitate the circulation of accessible format copies, so that published works be more readily accessible to beneficiary persons.

Despite having entered into force on 30 September 2016, the Marrakesh Treaty – signed by the EU on April 2014 – has not been concluded by the EU yet, because of the existing strong divergence of positions between the European Commission and some Member States on the nature (exclusive or not) of the competence of the EU to conclude the treaty. For this reason, a request for an opinion pursuant to Article 218(11) TFEU (Treaty on the Functioning of European Union) dealing with the supposed exclusive competence of the EU to conclude the Marrakesh Treaty has been submitted to the CJEU by the European Commission on August 11th 2015.

By the Opinion here at issue, the CJEU ruled on this competence issue stating that the conclusion of the Marrakesh Treaty falls within the exclusive competence of the European Union.

To this end the Opinion examines both Article 3(1) and Article 3(2) TFEU.

With reference to Article 3(1) TFEU, the Court observes that the Marrakesh Treaty, in view of its purpose and content, does not concern the first four areas referred to in Article 3(1) TFEU. Nor it relates to the common commercial policy of the EU. The Marrakesh Treaty, indeed, does not specifically relate to international trade (i.e. it is not essentially intended to promote, facilitate or govern trade) and it has not direct and immediate effects on trade, since the purpose of it is not to promote, facilitate or govern international trade in accessible format copies.

Despite the treaty at issue alluding to the circulation and cross-border exchange of accessible format copies (as for the case of audiobooks), that circulation and exchange are not commercial in nature. On the contrary the facilitation of the cross-border exchange of accessible format copies appears to be a means of achieving the non-commercial objective of the Marrakesh Treaty rather than an independent aim of the treaty.

With reference to Article 3(2) TFEU, the CJEU observes that, even though the exclusive competence of the EU is not provided for in a legislative act of the Union nor it is necessary to enable the Union to exercise its internal competence, the conclusion of the Marrakesh Treaty does fall within the exclusive competence of the EU according to Article 3(2) TFEU, since it may affect common rules or alter their scope, as the commitments fall within an area which is already covered to a large extent by EU rules. Exceptions or limitations provided for by the Marrakesh Treaty, indeed, as well as the import and export arrangements prescribed by the treaty at issue would have to be implemented within the field harmonized by Directive 2001/29.

According to CJEU’s established case-law, Member States may not enter, outside the framework of the EU institutions, into international commitments falling within an area that is already covered to a large extent by common EU rules, even if there is no possible contradiction between those commitments and the common EU rules, as in the present case. The Court also observes that discretion granted to Member States regarding an exception or limitation for the benefit of persons with a disability cannot be used in such a way as to compromise the objectives of Directive 2001/29.

Looking at the future, a predictable effect of the implementation of the Marrakesh Treaty by the EU will be a higher level of harmonization as regard as the exceptions and limitations of copyright and related rights for the benefit of persons who are visually impaired.

With specific regard to Italy it is most likely that the implementation of the Marrakesh Treaty by the EU will lead to an extension of the scope of the beneficiaries and also to less stringent conditions to comply with. 

Provisions of article 5(3)(b) of Directive 2001/29 have been implemented by the Italian legislator through article 71bis Law no. 633/1941 (Italian Copyright Law - ICL), which on its turn refers to Ministerial Decree no. 239/2007 for the identification of the beneficiaries of such exception.

The conditions to benefit from the exception to copyright set forth under article 71bis ICL are more stringent if compared with requirements set forth in article 5(3)(b) of Directive 2001/29 (i.e. the Italian exception only covers the beneficiary’s personal use of the protected work, while the specific personal use of the beneficiary is not required by Directive 2001/29 nor is mentioned by the Marrakesh Treaty).

Moreover, according to article 1 of the Ministerial Decree no. 239/2007, only persons affected by a physical disability can benefit from the Italian exception. On the contrary, according to article 3 of the Marrakesh Treaty, “A beneficiary person is a person who: (a) is blind; (b) has a visual impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability;  or (c) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading; regardless of any other disabilities.

Hence the implementation of the Marrakesh Treaty, most likely, will cause an extension of  the scope of beneficiaries that can actually take advantage of the exception set forth under article 71bis ICL, thus facilitating and promoting the access to culture of visually impaired persons and, therefore, their active participation to public, social and cultural life of their country.