Treaty of Marrakech

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Marrakech Treaty to Facilitate Access to Published Works by People who are blind, visually impaired, or otherwise print disabled
Short title: Treaty of Marrakech
Marrakech Treaty
Title (engl.): Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled
Date: June 27, 2013
Come into effect: September 30, 2016
Reference: WIPO Lex No. TRT / MARRAKESH / 001 (PDF file, 0.1 MB)
Contract type: Multinational
Legal matter: copyright
Signing: 80 parties
Ratification : 33 parties (as of October 13, 2017)
European Union: Signed April 30, 2014, not ratified (as of October 13, 2017)
Germany: Signed June 20, 2014, not ratified (as of October 13, 2017)
Liechtenstein: not signed / ratified (as of October 13, 2017)
Austria: Signed June 25, 2014, not ratified (as of October 13, 2017)
Switzerland: Signed June 28, 2013, not ratified (as of October 13, 2017)
Please note the note on the applicable contract version .

States that have ratified the Treaty of Marrakech (as of October 13, 2017)

The Marrakesh Treaty to facilitate access for blind, visually impaired or otherwise print-disabled persons to published works (Marrakesh Treaty) is an international treaty in the field of copyright law , which entered into force on 30 September 2016th Its main content is the obligation of the signatories to include certain restrictions or exceptions in their copyright laws for the benefit of the blind , visually impaired and otherwise print-disabled people. This is to ensure that the persons concerned can access a larger part of works in a barrier-free format .

The treaty was signed on June 27, 2013 at a diplomatic conference of the World Intellectual Property Organization (WIPO) in the Moroccan city of Marrakech . After Canada became the twentieth party to ratify the treaty on June 30, 2016 , it came into force three months later. The conditions for ratification are currently being created in the European Union.

content

Qualification as a contracting party

Contracting parties to the Marrakech Treaty can initially all of the - currently 191 (as of November 16, 2017) - member states of WIPO become. The conclusion of the WIPO Copyright Treaty (WCT) is therefore not required, for example. In addition, the General Assembly of WIPO can decide to admit an intergovernmental organization as a contracting party if it declares (1) to be responsible for the areas regulated by the treaty, (2) for relevant provisions that are binding on all its member states and (3) to have been duly authorized to become a party in accordance with its internal rules of procedure. The European Union made a corresponding declaration at the diplomatic conference in Marrakech; it is explicitly stated for them that they may become a contracting party.

This construction of the admissibility criteria for contracting parties is provided in the same form in other WIPO agreements in the field of copyright and has been adopted from there.

Basic agreements

Beneficiaries

As can already be seen from the full title of the Marrakech Treaty, it does not aim to facilitate access for the benefit of the broad mass of consumers, but is aimed specifically at the group of blind, visually impaired or otherwise print-disabled people. In the contract text, the term “beneficiary” is used in summary.

The term “blind” is not defined in the contract. According to current understanding, blindness is to be understood as a visual impairment that is so pronounced that the visual perception is completely absent or at least extremely weak.

In addition to the blind, people are also recorded who suffer from visual or perception impairments or reading difficulties which cannot be alleviated in such a way that a visual ability that is approximately comparable to that of a person who is not affected is achieved, so that those affected are unable to read printed matter in the same way as people without the impairment. In addition to visual impairments, the literature also includes cases of pronounced dyslexia among the constellations recorded with a view to the open wording . Outside of the privileged circle, however, there are, for example, cases in which normal vision can be established through the use of an optical visual aid (glasses, contact lenses). According to the commentary literature, this implies the necessity that people who are to be among the group of beneficiaries have to undergo at least certain diagnostic and treatment procedures in order to remedy the impairment. To clarify, however, an agreed declaration on the Marrakech Treaty stipulates that, conversely, it is not necessary to exhaust all possible diagnostic methods and medical treatments.

Finally, the group of beneficiaries also extends to people who, due to a physical handicap, are unable to hold or handle a book or keep their eyes still or move, as is fundamentally necessary for reading. This completes the definition of the very broad group of beneficiaries: In particular, not only people who suffer from visual or visual impairments should be recorded, but also people who are prevented from reading books due to other impairments. The literature gives examples of those affected by Parkinson's disease or rheumatoid arthritis .

Recorded works

The subject matter of copyright is the work . However, the Marrakech Treaty does not want to facilitate the beneficiaries' access to all works, but is limited to works of literature and art in the sense of the Revised Berne Convention (RBÜ) "in the form of text, notation and / or related illustrations". The RBÜ in turn understands works of literature and art as "products in the field of literature, science and art, regardless of the type and form of expression". Works of literature and art "in the form of text" include books (whether of a scientific or fictional nature), brochures, magazines, scripts and printed sermons. In the form of " Notation " ( notation ) are, for example, music works in notation before; In this case, transcriptions in Braille music script are intended to facilitate access . The "relevant illustrations" ( related illustrations ) Illustrations in the context of works of literature and art in the form of text or notation are meant. For example, the Marrakech Treaty also aims to facilitate access to images if and to the extent that they are used in an academic article.

An agreed declaration also states that the term work also includes works in an audio format. This particularly refers to audio books, which are also explicitly mentioned as an example. The broader choice of words in the agreed declaration is due to the consideration that magazine articles can also exist as spoken versions - these should also be privileged. In contrast, recordings of musical works - unlike recordings in musical notation - do not fall under the concept of work in the Marrakech Treaty despite the agreed declaration, because they are not available in the form of text or notation. Other works that do not fall under the concept of works in the Marrakech Treaty are audiovisual works, particularly films.

It is also necessary that the work in question has been published or made available to the public on other media. This restriction is also reflected in the full title of the contract ("on published works"; emphasis added). It prevents conflicts with the first publication right of the author, which is provided for in many copyright laws - especially civil law - as part of moral law .

Accessible form

Book with copy in accessible form (Braille)
Bookshelf with accessible audio book versions of books in DAISY format

In accordance with the intention of the Marrakech Treaty to improve the situation of blind, visually impaired or otherwise print-disabled people, the only thing that matters is the supply of work copies that are actually suitable to enable those affected to enjoy the work. The so-called work copies “in an accessible form” are therefore the operational pivot point of the entire Marrakech contract. The contract understands this to mean workpieces that are presented in a special form which "offers the beneficiaries access to the work, in particular just as easy and free access as visually impaired or otherwise print-impaired people". This is not about works that are accessible from the outset to both blind, visually impaired or reading impaired people as well as to people without such impairments: An article in an online magazine that is in barrier-free form on the Internet as an HTML document from the outset is not covered by the exception or limitation provisions in the contract.

Central provisions

Provision of copies of the work in accessible form

One of the two central areas of regulation of the Marrakech Treaty is the requirement to provide for restrictions or exceptions to the copyright exploitation rights in favor of visually impaired, cognizant or reading impaired persons:

Article 4 (1) (a) of the Marrakesh Treaty

The contracting parties provide for restrictions or exceptions in their national copyright law with regard to the right of reproduction, the right to distribution and the right of making available to the public in accordance with the WIPO Copyright Treaty (WCT), to make works more easily available to beneficiaries in an accessible form. The limitation or exception provided for in national legislation should allow the changes necessary to make the work available in the specific form.

The three exploitation rights with regard to which restrictions or exceptions are to be established are detailed

  • the right of reproduction, which means the author's exclusive right to make reproductions of his work (cf. Art. 9 para. 2 RBC);
  • the right to make it publicly available, i.e. the exclusive right of the author to allow the public wireless or wired reproduction of his work in such a way that the work is accessible to members of the public in places and at times of their choice (Art. 8 WCT). This includes, in particular, making a work available (e.g. as a text document) on the freely accessible Internet; as well as finally
  • the right of distribution, under which Art. 6 WCT understands the exclusive right of the author to decide on making the original and copies of a work publicly available through sale or other transfer of ownership.

In particular, this catalog does not contain other forms of the right of communication to the public, such as the right to speak, perform and present worldwide. The Marrakech Treaty does not provide for any restrictions or exceptions to these rights; At a later point it is only emphasized with regard to the performance and demonstration right that the contracting parties can provide for restrictions or exceptions in this regard . As can be seen from the second sentence of the above-cited provision (“should”), the contracting parties do not have to provide any restriction or exception that privileges the making of changes that are necessary for making the work accessible in the special form. The fact that such a limit determination is only recommended is judged differently in the literature. For example, von Lewinski sees no significant restriction in this, because the mere, intended content-preserving transfer of works into a form accessible to the beneficiaries is usually offset by existing exceptions to the right of reproduction; Others problematize the non-mandatory character with reference to practical problems in the border area between purely "translational" changes and those changes that are connected to needs-based access relief (e.g. adding a register to facilitate quick navigation in a document, which is often difficult for beneficiaries ).

The double reference to “restrictions or exceptions” (emphasis added) is part of a long technical tradition in supranational copyright agreements. There is no final consensus on the exact delimitation criterion between the two terms, but the alternative choice of words is intended to take account of the different national legal traditions. It is expressly left to them whether the contracting parties collect a remuneration obligation for the restrictions or exceptions granted. They also have the option of making exceptions or restrictions only for those works that are not already available to the beneficiaries on reasonable terms in the trade in a correspondingly accessible form. One should think about non-barrier-free printed literature, of which the publisher also offers a digital version in accessible form. According to the widespread idea, such a regulation can create an incentive for rightholders to offer their products in an accessible form from the outset; Similar regulations already exist in some countries.

Cross-border exchange of work copies in an accessible form

Facade of the German Central Library for the Blind in Leipzig
German Central Library for the Blind , Leipzig

The second main regulation of the Marrakech Treaty concerns the cross-border exchange of copies of works in accessible form:

Art. 5 Para. 1 Marrakech Treaty

In the event that a work copy is created in an accessible form due to a restriction or exception or by virtue of the law, the contracting parties provide that this work copy in an accessible form to a beneficiary or an authorized body can be delivered or made available in another contracting party by an authorized body.

At the center of this regulation, which affects the relationship between the contracting states, are the “authorized bodies”. These are bodies "authorized or recognized by the State to provide training, educational training, adapted reading or information access services to non-profit beneficiaries". In practice, this means in particular libraries for the blind and comparable institutions. In order to be authorized bodies within the meaning of the Marrakech Treaty, the institutions must implement internal processes with which certain forms of abuse - detailed in the Marrakech Treaty - are prevented. The additional requirement of state authority or recognition is motivated by the fact that the risk of unlawful use of the privileges provided for in the Marrakech Treaty is to be reduced. It is not necessary that the agencies themselves are state; Above all, non-profit organizations that meet the relevant criteria are also eligible .

In any case, if the creation of the accessible copy of the work is not done by the rights holder, this is usually associated with considerable effort. Aside from the purely supply aspects, the possibility of exchanging such copies of the work through authorized bodies also has the potential to save additional costs for the creation of barrier-free copies, especially in the case of works that are less popular. Both aspects also explain why the exchange privilege only applies to work copies that have been “created due to a restriction or exception or by virtue of the law” - and not also for those that the rights holder himself or one of his licensees has put into circulation; there the author's right of distribution remains unaffected.

Technical protective measures

One difficulty in producing barrier-free copies of the work can be that the existing copies of the work are provided with technical protective measures, the circumvention of which is prohibited in most countries. An obligation to prohibit this is not least contained in other WIPO treaties; For example, the WIPO Copyright Treaty requires its contracting parties to provide “adequate legal protection and effective legal remedies against circumvention of effective technical measures” which authors make use of to secure their rights. The Marrakech Treaty obliges those contracting parties that provide for prohibitive norms to circumvent technical measures to take “appropriate measures if necessary” so that beneficiaries are not prevented by such provisions from making use of the restrictions or exceptions granted in their favor under the Marrakech Treaty . When such a measure is “necessary” and when it is “suitable” is not specified and is likely to result from a balance of interests between rightholders and beneficiaries.

In an agreed declaration it is also stated that the authorized bodies privileged in the Marrakech Treaty can decide "under various circumstances" to implement technical measures for the creation, distribution and provision of copies of the work in an accessible form. This proposes a means of taking into account the requirement that the authorized bodies are only allowed to facilitate the work access of the beneficiaries - i.e. the blind, visually or otherwise print-disabled persons - and not also those of persons without corresponding impairments. For example, it would be conceivable that authorized bodies could provide an accessible electronic copy of the work prepared by them on the basis of a printed book with copy protection measures in order to ensure that a beneficiary user does not make it publicly available on the Internet without permission.

Requirements for barriers and exceptions

States that have ratified the RBC and are bound by the three-step test there (as of October 13, 2017)

The contract makes extensive reference to the limits of the restrictions or exceptions that the contracting parties may implement in order to fulfill the Marrakech Treaty. The various versions of the three-step test from the RBÜ, the TRIPS Agreement and the WCT are expressly (and largely literally) included. Marrakech contracting parties, which are also a party to one of these agreements, are explicitly required to comply with their obligations from the other relevant agreements - in particular compatibility with the three-step test - when formulating the restrictions or exceptions required in the Marrakech contract fulfill. (The three-step test is a provision that serves to balance the interests of the author or rights holder and the public and is contained in a slightly modified form in many copyright agreements. It essentially states that restrictions or exceptions may only be provided if they relate to certain special cases [1st level] and the permitted exploitation actions neither impair the normal evaluation of the work [2nd level] nor unreasonably violate the legitimate interests of the author [3rd level].)

Meanwhile, Art. 1 of the Marrakech Treaty states that the contract does not affect any obligations or rights that exist between the Marrakech contracting parties on the basis of other contracts.

Entry into force and administrative regulations

The Marrakech Treaty entered into force three months after the twentieth qualified contracting party deposited its instrument of ratification or accession with WIPO. India became the first party to ratify the treaty on June 24, 2014; Canada became the twentieth party to complete the ratification process on June 30, 2016 . The Marrakech Treaty thus came into force on September 30, 2016. The number of 20 ratifications required is slightly fewer than in the other more recent multi-state copyright treaties (WCT, WPPT, Beijing Treaty: 30 each), but higher than in the older copyright treaties of the 1960s and 1970s, which tend to only be around five when they come into force or six ratifications. On the day it came into force, the Marrakech Treaty became binding for the twenty parties who had completed the ratification process by June 30, 2016; for all ratification parties who join later, the treaty becomes binding three months after completion of their respective ratification process. The contracting parties can terminate the contract with one year's notice.

Administratively, the Marrakech Treaty follows the practice in other WIPO agreements. In particular, the contracting parties form an assembly which deals with questions relating to the maintenance and development of the treaty, its application and functioning. The meeting met for the first time in October 2016.

implementation

European Union

The European Union implemented the Marrakech Treaty in 2017 through two legal acts:

  • Regulation (EU) 2017/1563 (Marrakech Regulation) regulates legal transactions with third countries outside the European Union and does not require any further implementation.
  • Directive (EU) 2017/1564 (Marrakech Directive) modifies the copyright provisions in the law of the European Union.

The Marrakech Directive had to be implemented into the national law of the member states by October 11, 2018.

Competence disputes

The European Union signed the Marrakesh Treaty on April 30, 2014 after a Council decision . Even in its preparatory phase, some member states urged it to be clarified that the conclusion of the Marrakech Treaty falls within the shared competence of the EU and the member states. (In this case, the competence to conclude contracts would rest with the community and the individual member states; in the other case, however, with exclusive competence, the EU would only be entitled to conclude the agreement.)

For example, seven member states - Germany, Finland, France, Romania, Slovakia, Slovenia and the Czech Republic - expressed in a statement that at least Article 4 of the Marrakech Treaty could no longer fall within the exclusive competence of the Union in their opinion. Because there is imposed on the contracting states to provide for a restriction or exception to the exclusive rights of the author in favor of print disabled people. Under Union law, however, no comparable obligation is provided; the Union states are only expressly free to provide for a corresponding limitation regulation (Art. 5 Para. 3 (b) InfoSoc Directive ). No exclusive Union competence could arise from this. On the other hand, the Commission took the view that ratification fell within the exclusive competence of the Union under Article 3 of the Treaty on the Functioning of the European Union (TFEU). Specifically, in later pronouncements, the Commission relies on the allocation of powers in Articles 114 and 207 TFEU.

Despite the disagreement, the Commission proposed to the Council in October 2014 to ratify the Marrakesh Treaty. There was immediate resistance there. In addition to the questions of competence, there was also disagreement about the timing of the ratification process. Many delegations took the view that the Commission should first table a legislative proposal making the adjustments necessary to fulfill the Marrakech Treaty; otherwise ratification by the Council would be ineffective, since the deposit of the ratification instrument would only be possible after the adjustments in European law have been implemented. Finally, in May 2015, at the suggestion of the Permanent Representatives Committee , the Council asked the Commission to draw up a legislative proposal to bring EU law into line with the requirements of the Marrakesh Treaty. The question of competence was expressly left open.

In July 2015, the Commission applied to the Court of Justice of the European Union for an opinion on the question of whether the European Union has exclusive competence to conclude a contract in accordance with Article 218 (11) TFEU. In September 2016, the Commission presented a legislative proposal to create the conditions for accession to the Marrakesh Treaty; it provided for the matter to be regulated partly in the form of a directive and partly in the form of a regulation . By order of February 14, 2017, the Court of Justice affirmed the exclusive competence of the Union.

Regulation and Directive

Based on the decision of the Court of Justice, on July 6, 2017, Parliament finally approved the drafts for a directive and a regulation at first reading, which have since been amended again. After approval by the council, the laws were promulgated on September 20, 2017. The directive and ordinance then came into force on October 10, 2017. However, the regulation is only applicable from October 12, 2018.

The directive is the main instrument for implementing the obligations under the Marrakech Treaty. In particular, it is intended to ensure that the member states provide for harmonized regulations for the provision of copies of works in an accessible form. The regulation regulates the obligations regarding the exchange of copies in an accessible format between the Union and third countries. Unlike directives, regulations do not need to be transposed into national law, but apply directly in every member state (Art. 288 TFEU). The scope for transposition of directives into national law does not exist with regulations. In the opinion of the legislator, the regulation form of the ordinance was chosen for the provisions on the import and export of copies of works in accessible form in order to “ensure that these measures are applied uniformly throughout the internal market and not the harmonization of the exclusive rights and exceptions created in these directives endanger ". It is the first regulation in the field of copyright - which the EU has so far only regulated by directives.

Germany

The Marrakesh Directive was implemented in the German Copyright Act by inserting Section 45a Paragraph 3 to Section 45d UrhG. Right holders who take copy protection measures are obliged to provide the necessary means to make use of the inserted provisions (Section 95b (1) No. 2 to 5 UrhG). The regulation comes into force on January 1, 2019. The ordinance on authorized bodies under the Copyright Act of December 8, 2018 ( Federal Law Gazette I p. 2423 ) specifies in particular the duties of care of authorized bodies under Section 45c UrhG in order to counteract the inadmissible use of copies in a barrier-free format.

Switzerland

In Switzerland, the ratification of the Marrakech Treaty was discussed as part of the consultation process initiated in December 2015 on the revision of the copyright law and two agreements of the World Intellectual Property Organization (WIPO). According to the results report presented at the end of 2016, the approval of the Marrakech Treaty is "generally welcomed" and only rejected by the FDP on "fundamental grounds". In the opinion of the lead Federal Department of Justice and Police , Art. 24c of the Copyright Act (URG) already fulfills most of the requirements of the Marrakech Treaty. After the final report, however, an amendment to the exemption is still required in order to enable the introduction of copies of the work in an accessible form from a contracting state to Switzerland.

On December 2, 2016, the Federal Council took note of the result of the consultation. The Federal Department of Justice and Police intends to submit a proposal to the Federal Council on how to proceed before the end of 2017.

Web links

literature

  • Lida Ayoubi: The Marrakesh Treaty: Fixing International Copyright Law for the Benefit of the Visually Impaired Persons . In: New Zealand Journal of Public and International Law . tape 13 , no. 2 , 2015, p. 255–276 ( HeinOnline , not freely accessible).
  • Mihály Ficsor: Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired. October 11, 2013, accessed September 27, 2016 .
  • Laurence R. Helfer et al. : The World Blind Union Guide to the Marrakesh Treaty: Facilitating Access to Books for Print-Disabled Individuals . Oxford University Press, Oxford 2017, ISBN 978-0-19-067964-4 .
  • Margot E. Kaminski, Shlomit Yanisky-Ravid: The Marrakesh Treaty for Visually Impaired Persons: Why a Treaty Was Preferable to Soft Law . In: University of Pittsburgh Law Review . tape 75 , no. 3 , 2014, p. 255–300 , doi : 10.5195 / lawreview.2014.338 .
  • Silke von Lewinski: The Marrakesh Treaty . In: Irini Stamatoudi (Ed.): New Developments in EU and International Copyright Law (=  Information Law Series . Volume 35 ). Kluwer, Alphen aan den Rijn 2016, ISBN 978-90-411-5991-5 , p. 123-141 .
  • Silke von Lewinski: The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled . In: Jörg Reinbothe, Silke von Lewinski (Ed.): The WIPO treaties on copyright: A commentary on the WCT, the WPPT and the BTAP . 2nd Edition. Oxford University Press, Oxford 2015, ISBN 978-0-19-968694-0 , pp. 615-656 .
  • Silke von Lewinski: WIPO's discussions on exceptions and limitations, in particular in favor of visually impaired persons . In: Revue Internationale du Droit d'Auteur . tape 225 , 2010, pp. 52-199 .
  • Li Jingyi: Copyright exemptions to facilitate access to published works for the print disabled - the gap between national laws and the standards required by the Marrakesh Treaty . In: International Review of Intellectual Property and Competition Law . tape 45 , no. 7 , 2014, p. 740-767 , doi : 10.1007 / s40319-014-0251-6 .
  • Ana Ramalho: Signed, Sealed, but Not Delivered: The EU and the Ratification of the Marrakesh Treaty . In: European Journal of Risk Regulation . tape 6 , 2015, p. 629-632 .
  • Aaron Scheinwald: "Who Could Possibly be Against a Treaty for the Blind?" In: Fordham Intellectual Property, Media & Entertainment Law Journal . tape 22 , no. 2 , 2012, p. 445–512 ( HeinOnline , not freely accessible).
  • Catherine Seville : The principles of international intellectual property protection: from Paris to Marrakesh . In: The WIPO Journal . tape 5 , no. 1 , 2013, p. 95-104 .
  • Simonetta Vezzoso: The Marrakesh spirit - a ghost in three steps? In: International Review of Intellectual Property and Competition Law . tape 45 , no. 7 , 2014, p. 796-820 , doi : 10.1007 / s40319-014-0253-4 .
  • Lior Zemer, Aviv Gaon: Copyright, disability and social inclusion: the Marrakesh Treaty and the role of non-signatories . In: Journal of Intellectual Property Law & Practice . tape 10 , no. 11 , 2015, p. 836-849 , doi : 10.1093 / jiplp / jpv149 .

Remarks

  1. ^ WIPO, Marrakesh Treaty Assembly. First (1st Ordinary) Session. Status of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (MVT / A / 1/2 Rev.) (PDF file, 0.1 MB), September 28, 2016, accessed on May 6, 2017, pp. 1, 3.
  2. ↑ a b c d e f WIPO, Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh 2013). Status on October 13, 2017 (PDF file, 0.1 MB), accessed November 14, 2017; dies., WIPO-Administered Treaties> Contracting Parties> Marrakesh VIP Treaty , accessed November 14, 2017.
  3. ↑ WIPO, Member States , accessed November 16, 2017.
  4. ↑ Art. 15 para. 1 Marrakech Treaty.
  5. ↑ Article 15, Paragraph 2 of the Marrakesh Treaty.
  6. ↑ Article 15, Paragraph 3 of the Marrakech Treaty.
  7. ↑ Wording identical already in Art. 17 WCT (where only instead of the European Union - according to the circumstances at the time - the European Community is mentioned), likewise in Art. 26 WPPT [WIPO-Treaty on Performances and Phonograms]; Art. 23 Treaty of Beijing [for the protection of audiovisual performances] also adopts the wording, but like the Treaty of Marrakech already refers to the European Union. For the history of the origin of the regulation, see against this background the original discussions in the context of the later Article 17 WCT, on this Mihály Ficsor, The Law of Copyright and the Internet. The 1996 WIPO Treaties, their Interpretation and Implementation , Oxford University Press, Oxford 2002, ISBN 0-19-829901-X , §§ C17-P26.01 ff. And Reinbothe in ders./von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, §§ 7.17.1 ff.
  8. ↑ For a possible medical definition, see for example the International Statistical Classification of Diseases and Related Health Problems (ICD) of the World Health Organization , cf. DIMDI, International Statistical Classification of Diseases and Related Health Problems, 10th Revision, Version 2016, Visual Impairments and Blindness (H53-H54) ( Memento of the original from August 9, 2016 in the Internet Archive ) Info: The @1@ 2Template: Webachiv / IABot / www.dimdi.de archive link has been inserted automatically and has not yet been checked . Please check the original and archive link according to the instructions and then remove this notice. , accessed on September 10, 2016. A precise definition can ultimately be waived because the Marrakech Treaty also covers those affected by less serious forms of visual, perceptual or reading impairments (see below).
  9. ↑ Art. 3 letter b) Marrakech Treaty.
  10. ↑ Von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd ed. 2015, § 18.0.45; Vezzoso, The Marrakesh spirit - a ghost in three steps ?, 2014, op. Cit., P. 811. The example of dyslexia was also explicitly contained in Art. B (b) of the draft contract in the consensus paper of some delegations of the Standing Committee for WIPO copyrights and related rights, Consensus document on an international instrument on limitations and exceptions for persons with print disabilities (SCCR / 22/15) (PDF file, 0.1 MB), June 20, 2011, accessed on 10. September 2016.
  11. ↑ Von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.45 (“glasses or lenses”). Comparative law, reference can be made to the British Copyright, Designs and Patents Act (1988), which in Section 31F (3) expressly states an exclusion criterion, according to which a person is not to be classified as disabled if he only suffers from impaired visual function, by the use of corrective lenses ( corrective lenses ) can be as much relieved that the visual function reaches a level that is sufficient usually to read without a special strength or type of lighting ( reading without a special level or kind of light ) . See Section 2 (5) Copyright and Rights in Performances (Disability) Regulations 2014 (2014 No. 1384).
  12. ↑ Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op.cit., P. 19; von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.45.
  13. ^ Agreed declaration on Article 3 (b) of the Marrakesh Treaty.
  14. ↑ Art. 3 letter c) Marrakech Treaty.
  15. ^ Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op.cit., P. 19
  16. ↑ Vezzoso, The Marrakesh spirit - a ghost in three steps ?, 2014, op.cit., P. 811.
  17. ↑ Art. 2 letter a) Marrakech Treaty. In this respect, for the purpose of dogmatic clarification, one can add that the expression "works of literature and art [...] in the form of text, notation and / or related illustrations", with which the Marrakech Treaty defines the term "work", actually not a work, but describes a workpiece. If one draws on the traditional distinction between the work as an immaterial good and the workpiece, which is the object of property as a tangible body, it becomes clear that one leaves the sphere of the spiritualized concept of an object with a specification of the "form". In addition Eugen Ulmer, Copyright and Publishing Law , 3rd edition, Springer, Berlin and Heidelberg 1980, ISBN 3-540-10367-8 , p. 11 f .; fundamentally Josef Kohler , The Idea of ​​Intellectual Property, in: Archiv für die civilistische Praxis, 32, 1894, pp. 141–242, reprinted in UFITA, 123, 1993, pp. 99–167, here in particular p. 113 ff.
  18. ↑ Art. 2 para. 1 RBÜ (which also contains an extensive list of examples: "Books, brochures and other written works; lectures, speeches, sermons and other works of the same kind; dramatic or dramatic-musical works; choreographic works and pantomimes; musical Compositions with or without text; cinematographic works, including works that are produced by a process similar to that of cinematographic works; works of drawing, painting, architecture, sculpture, engravings and lithographs; photographic works that are assimilated to works by a processes similar to photography are produced; works of applied art; illustrations, geographical maps; plans, sketches and plastic representations in the fields of geography, topography, architecture or science ”).
  19. ^ Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op.cit., P. 13; von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.34; Vezzoso, The Marrakesh spirit - a ghost in three steps ?, 2014, op. Cit., P. 813; Ricketson / Ginsburg, International Copyright and Neighboring Rights, Vol. 1, 2nd edition 2005, §§ 8.01 ff., in particular § 8.06.
  20. ↑ Von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.34.
  21. ^ Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op.cit., P. 13; von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.34.
  22. ↑ Agreed declaration on Article 2 (a) of the Marrakesh Treaty.
  23. ↑ Von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.35. In fact, the original idea was to only exclude audio books, cf. WIPO, Standing Committee on Copyright and Related Rights. 25th session. Geneva, November 19 to 23, 2012. Draft Report (SCCR / 25/3) (PDF file, 0.5 MB), January 23, 2013, accessed on September 12, 2016, p. 34 and the draft version below at the Marrakech Conference, cf. dies., Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities. Marrakech, June 17 to 28, 2013. Draft Text of an International Instrument / Treaty on Limitations and Exceptions for Visually Impaired Persons / Persons with Print Disabilities (VIP / DC / 3 REV) (PDF file, 0.2 MB), 20 April 2013, accessed September 12, 2016, p. 5.
  24. ↑ Von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.35.
  25. ^ Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op.cit., P. 13; von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.35; Vezzoso, The Marrakesh spirit - a ghost in three steps ?, 2014, op.cit., P. 813.
  26. ↑ Art. 2 letter a) Marrakech Treaty.
  27. ↑ Von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.36; Paul Goldstein and PB Hugenholtz, International Copyright. Principles, Law, and Practice , 3rd ed., Oxford University Press, New York 2013, ISBN 978-0-19-979429-4 , § 10.3. See, for example, Section 12 (1) of the German Copyright Act (dUrhG); Art. 9 para. 2 Swiss Copyright Act (URG); not expressly in the Austrian Copyright Act , but interpreted there practically as part of the individual exploitation rights (cf. Anderl in Kucsko, copyright law, 2008, p. 218, with further references).
  28. ↑ Art. 2 letter b) Marrakech Treaty.
  29. ↑ Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op.cit., P. 14 f.
  30. ↑ The RBÜ does not contain an explicit definition of the right of reproduction, cf. Ricketson / Ginsburg, International Copyright and Neighboring Rights, Vol. 1, 2nd edition 2005, § 11.19 and Mihály Ficsor, The Law of Copyright and the Internet. The 1996 WIPO Treaties, their Interpretation and Implementation , Oxford University Press, Oxford 2002, ISBN 0-19-829901-X , § 3.17 and § C1.56 for a proposed definition. WCT and WPPT are based on the definition of duplication in the RBÜ, cf. Art. 1 Para. 4 WCT and the agreed declaration on Art. 1 Para. 4 WCT, on this in detail Reinbothe in ders./von Lewinski, The WIPO treaties on copyright , 2nd edition 2015, §§ 7.1.29 ff.
  31. ↑ See about § 19 dUrhG.
  32. ↑ Article 4, Paragraph 1, Letter b) of the Marrakesh Treaty.
  33. ↑ For the combination of “shall-language” provisions and “should-language” recommendations, see Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op. Cit., P. 20.
  34. ↑ Von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.49.
  35. ↑ Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op.cit., P. 20; Vezzoso, The Marrakesh spirit - a ghost in three steps ?, 2014, op.cit., P. 812 f.
  36. ↑ More on this, Benoît Galopin, Les exceptions à usage public en droit d'auteur, LexisNexis, Paris 2012, ISBN 978-2-7110-1690-7 , pp. 7 ff .; Martin Senftleben, Copyright, limitations and the three-step test. An analysis of the three-step test in international and EC copyright law , Kluwer, Den Haag 2004, ISBN 90-411-2267-2 , p. 22 ff.
  37. ↑ Ficsor wants to make the distinction based on the fact that in the case of a "restriction" the (limited) rights are still applicable, albeit to a limited extent (regularly such that a compulsory license is provided or only a pure remuneration claim is granted), while with an “exception” the law simply no longer applies, so there is no entitlement to remuneration. Cf. Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op.cit., P. 21. Critical to this delimitation Benoît Galopin, Les exceptions à usage public en droit d'auteur, LexisNexis, Paris 2012, ISBN 978-2-7110-1690-7 , p. 8 f., With further references. For the underlying conceptual question, see also the article Legal license .
  38. ↑ See Art. 4 Para. 5 Marrakech Treaty.
  39. ↑ Art. 4 Para. 4 Marrakech Treaty.
  40. ^ Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op.cit., P. 26 f .; see also recital 8 of the preamble to the Marrakech Treaty.
  41. ↑ Von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.59.
  42. ↑ Art. 2 letter c) Marrakech Treaty.
  43. ↑ Von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.40.
  44. ↑ See Art. 2 Letter c) No. i) –iv) Marrakech Treaty.
  45. ^ Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op.cit., P. 17; von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.40.
  46. ↑ Kaminski / Yanisky-Ravid, The Marrakesh Treaty for Visually Impaired Persons, 2014, op.cit., P. 299; von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd ed. 2015, § 18.0.42. See, for example also in the US law in 1996 inserted Chafee Amendment ( 17 USC § 121 ), which in section (d) (1) the "competent authority" ( authorized entity ) defined as " a nonprofit organization or a governmental agency did has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities ".
  47. ^ Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op. Cit., Pp. 28 f .; von Lewinski in Reinbothe / von Lewinski, The WIPO treaties on copyright, 2nd edition 2015, § 18.0.63.
  48. ↑ For an overview of the handling of technical protective measures in different national copyright regulations cf. the overviews regarding "Anti-Circumvention of Technological Protection Measures" by Kenneth D. Crews, WIPO Study on Copyright Limitations and Exceptions for Libraries and Archives: Updated and Revised (SCCR / 30/3) (PDF file, 2.7 MB) , June 10, 2015, accessed on September 27, 2016 and question 9 (2) of the catalog of questions in Reto M. Hilty and Sylvie Nérisson (eds.), Balancing copyright. A survey of national approaches, Springer, Heidelberg u. a. 2012, ISBN 978-3-642-29595-9 .
  49. ↑ Art. 11 WCT. See also Art. 18 WPPT and Art. 15 Treaty of Beijing.
  50. ↑ Art. 7 Marrakech Treaty.
  51. ^ From Lewinski, The Marrakesh Treaty, 2016, op.cit., P. 138.
  52. ↑ Agreed declaration on Art. 7 Marrakech Treaty.
  53. ^ Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op.cit., P. 38.
  54. ↑ This includes states that have ratified the RBC in the Stockholm (1967) and / or the Paris version (1971). States that have only ratified parts of the relevant version which do not contain the three-step test laid down in Art. 9 Para. 2 are not taken into account. Database: WIPO, Contracting Parties> Berne Convention> Stockholm Act (1967) , accessed on November 14, 2017; dies., Contracting Parties> Berne Convention> Paris Act (1971) , accessed November 14, 2017; dies., Berne Convention for the Protection of Literary and Artistic Works. Status October 13, 2017 (PDF file, 0.1 MB), accessed November 14, 2017.
  55. ↑ See Art. 11 Marrakech Treaty.
  56. ^ In detail on the three-step test in the various agreements Martin Senftleben, Copyright, limitations and the three-step test. An analysis of the three-step test in international and EC copyright law , Kluwer, Den Haag 2004, ISBN 90-411-2267-2 and Robert Dittrich, Der Dreistufentest , in: dems. (Ed.), Contributions to Copyright VIII , MANZ, Vienna 2005, ISBN 3-214-07729-5 , pp. 63–119.
  57. ↑ Article 18 of the Marrakech Treaty.
  58. ↑ WIPO, Marrakesh Notification No. 21. Entry into Force , June 30, 2016, accessed September 30, 2016.
  59. ↑ WIPO, Canada's Accession to Marrakesh Treaty Brings Treaty into Force (PR / 2016/792) , June 30, 2016, accessed September 29, 2016.
  60. ^ Ficsor, Commentary to the Marrakesh Treaty on Accessible Format Copies for the Visually Impaired, 2013, op.cit., P. 59.
  61. ↑ Article 19 of the Marrakesh Treaty.
  62. ↑ Art. 20 Marrakech Treaty.
  63. ↑ Article 13 of the Marrakesh Treaty.
  64. ^ WIPO, Marrakesh Treaty Assembly. First (1st Ordinary) Session. Geneva, October 3 to 11, 2016. Draft Report (MVT / A / 1/3 Prov.) (PDF file, 0.3 MB), October 31, 2016, accessed November 20, 2016.
  65. ↑ Decision of the Council of 14 April 2014 on the signature on behalf of the European Union of the Marrakech Treaty to facilitate access to published works for blind, visually impaired or otherwise print-disabled people, OJ. L 115 of April 17, 2014, p. 1 ; WIPO, WIPO-Administered Treaties> Contracting Parties> Marrakesh VIP Treaty , accessed on September 3, 2016; Ramalho, Signed, Sealed, but Not Delivered, 2015, op.cit., P. 629.
  66. ↑ General Secretariat of the Council of the European Union, Annex 1 to closing note 8305/14 of the General Secretariat of the Council to the Permanent Representatives Committee (PDF file, 0.1 MB), April 9, 2014, accessed on September 3, 2016, p. 1 f.
  67. ↑ General Secretariat of the Council of the European Union, Annex 1 to closing note 8305/14 of the General Secretariat of the Council to the Permanent Representatives Committee (PDF file, 0.1 MB), April 9, 2014, accessed on September 3, 2016, p. 7th
  68. ↑ See the note from the Presidency to the Permanent Representatives Committee , Note from the Presidency to the Permanent Representatives Committee (7321/15) (PDF file, 0.1 MB), March 20, 2015, accessed on September 3, 2016 , P. 4.
  69. ↑ General Secretariat of the European Commission, Proposal for a Council Decision on the Conclusion on behalf of the European Union of the Marrakech Treaty to Facilitate Access for Blind, Visually Impaired or Other Print Disabled Persons to Published Works (14617/14) (PDF file, 0, 3 MB), October 21, 2014, accessed September 3, 2016.
  70. ↑ See for example the note from the Council Secretariat to the Delegations, Note from the General Secretariat of the Council to the Delegations (5110/15) (PDF file, 0.1 MB), January 9, 2015, accessed on September 3, 2016 , P. 2 ff.
  71. ↑ See the note from the Presidency to the Permanent Representatives Committee , Note from the Presidency to the Permanent Representatives Committee (7321/15) (PDF file, 0.1 MB), March 20, 2015, accessed on September 3, 2016 , P. 3.
  72. ↑ Note from the Presidency to the Permanent Representatives Committee (8387/15) (PDF file, 0.2 MB), May 4, 2015, accessed on September 3, 2016, p. 1; again based on a proposal by the Council Presidency on March 20, 2015, cf. the note from the Presidency to the Permanent Representatives Committee , Note from the Presidency to the Permanent Representatives Committee (7321/15) (PDF file, 0.1 MB), March 20, 2015, accessed on September 3, 2016, p. 5 f.
  73. ↑ Council of the European Union, 3390th Council meeting. General Affairs. Outcome of the Council Meeting (8967/15) (PDF file, 0.3 MB), May 19, 2015, accessed on September 2, 2016, p. 8; Ramalho, Signed, Sealed, but Not Delivered, 2015, op.cit., P. 630.
  74. ↑ Court of Justice of the European Union, request from the European Commission for an opinion according to Art. 218, Paragraph 11 TFEU (Opinion 3/15) , September 4, 2015, accessed on September 8, 2016.
  75. ↑ European Commission, Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain permissible forms of use of works protected by copyright or related rights and other subject matter for the benefit of blind, visually impaired or otherwise print-disabled persons and amending Directive 2001/29 / EC on harmonization Certain Aspects of Copyright and Related Rights in the Information Society (COM / 2016/0596 final) , September 14, 2016, accessed June 21, 2017; this., Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the cross-border exchange of copies of certain works protected by copyright or related rights and other subject matter in an accessible format between the Union and third countries for the benefit of blind, visually impaired or otherwise print impaired persons (COM / 2016/0595 final) , September 14, 2016, accessed June 21, 2017.
  76. ↑ ECJ, decision of February 14, 2017, report 3/15 = GRUR Int. 2017, 438 - Treaty of Marrakech .
  77. ↑ European Parliament, EU rules to make more books available for blind people informally agreed with Council , May 10, 2017, accessed on June 21, 2017.
  78. ↑ On Directive: European Parliament, Texts Adopted - Thursday 6 July 2017 - Legislative resolution of the European Parliament of 6 July 2017 on the proposal for a directive of the European Parliament and of the Council on certain permitted forms of use under copyright or related rights Protected works and other subject matter for the benefit of blind, visually impaired or otherwise print disabled persons and amending Directive 2001/29 / EC on the harmonization of certain aspects of copyright and related rights in the information society (COM (2016) 0596 - C8-0381 / 2016 - 2016 / 0278 (COD)) , accessed November 14, 2017; on regulation: that., Texts adopted - Thursday 6 July 2017 - Legislative resolution of the European Parliament of 6 July 2017 on the proposal for a regulation of the European Parliament and of the Council on the cross-border exchange of copies of certain copyright or related rights protected works and other subject matter in an accessible format between the Union and third countries for the benefit of blind, visually impaired or otherwise print-disabled persons (COM (2016) 0595 - C8-0380 / 2016 - 2016/0279 (COD)) , accessed on November 16, 2017.
  79. ↑ On the directive: Council of the European Union, Interinstitutional Dossier: 2016/0278 (COD) (PDF file, 1.5 MB), July 17, 2017, accessed on November 16, 2017; Regarding the regulation: ders., Interinstitutional dossier: 2016/0279 (COD) (PDF file, 1.5 MB), July 17, 2017, accessed on November 16, 2017.
  80. ↑ Regarding the directive: Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017 on certain permissible forms of use of certain works protected by copyright or related rights and other subject matter for the benefit of blind, visually impaired or otherwise print-disabled people and amending them Directive 2001/29 / EC on the harmonization of certain aspects of copyright and related rights in the information society, OJ. L 242 of September 20, 2017, p. 6 ; on Regulation: Regulation (EU) 2017/1563 of the European Parliament and of the Council of 13 September 2017 on the cross-border exchange of copies of certain works protected by copyright or related rights and other subject matter in a barrier-free format between the Union and third countries for the benefit of blind people, visually impaired or otherwise print impaired persons, OJ. L 242 of September 20, 2017, p. 1
  81. ↑ Art. 12 Directive (EU) 2017/1564 ; Art. 8 sentence 1 Regulation (EU) 2017/1563 .
  82. ↑ Art. 8 sentence 2 Regulation (EU) 2017/1563 .
  83. ↑ See also Recital 5 of Regulation (EU) 2017/1563 .
  84. ↑ Recital 5 of Regulation (EU) 2017/1563 .
  85. ↑ On the status quo ante: Stamatoudi / Torremans in dies., EU Copyright Law , 2014, § 21.22.
  86. ↑ Law of November 28, 2018 ( Federal Law Gazette I, p. 2014 )
  87. ↑ Federal Department of Justice and Police, Two agreements between the World Intellectual Property Organization and amendments to the Copyright Act: Report on the outcome of the consultation process (PDF file, 0.9 MB), December 2, 2016, accessed on June 10, 2017, p. 3, 9.
  88. ↑ Federal Department of Justice and Police, proposal for an explanatory report on two agreements of the World Intellectual Property Organization and on changes to the copyright law  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. @1@ 2Template: Dead Link / www.ige.ch   (PDF file, 1.0 MB), accessed on June 10, 2017, p. 6.
  89. ↑ Federal Department of Justice and Police, Two agreements between the World Intellectual Property Organization and amendments to the Copyright Act: Report on the outcome of the consultation process (PDF file, 0.9 MB), accessed on June 10, 2017, p. 9; that., Proposal for an explanatory report on two agreements of the World Intellectual Property Organization and on changes to the copyright law  ( page no longer available , search in web archives )  Info: The link was automatically marked as broken. Please check the link according to the instructions and then remove this notice. @1@ 2Template: Dead Link / www.ige.ch   (PDF file, 1.0 MB), accessed on June 10, 2017, p. 6 f.
  90. ^ Federal Department of Justice and Police, Modernization of Copyright , November 8, 2017, accessed on November 14, 2017.