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Marrakesh Treaty enters into force

On 30 September 2016, a new international treaty (the Marrakesh Treaty) designed to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled, comes into force.

WIPO

The Marrakesh Treaty is administered by the World Intellectual Property Organisation (WIPO), a specialised agency of the United Nations. Other important intellectual property treaties administered by WIPO include the Patent Cooperation Treaty, the Madrid Agreement and Protocol, and the Hague Agreement, which together facilitate international applications for patents, trade marks and industrial design registrations.

As a body of the UN, WIPO has social responsibilities which include promoting creative intellectual activities generally and facilitating the transfer of technology to developing countries to accelerate economic, social and cultural development. As part of these broader responsibilities, for example, WIPO:

– hosts the WIPO GREEN platform which aims to promote innovation in and diffusion of green technologies;

– runs the Global Challenges program to raise awareness and understanding of the complex issues surrounding global health and access to medical technologies, innovation, technology transfer and trade; and

– is working towards a treaty on the protection of traditional knowledge, traditional cultural expressions and genetic resources.

Marrakesh Treaty

The Marrakesh Treaty falls within WIPO’s broader remit to manage intellectual property rights in a way which benefits not just rights holders but society in general. The treaty itself creates a set of limitations and exceptions to copyright which are binding on participating countries. In particular, the treaty requires countries to permit the reproduction, distribution and making available of published text works in formats designed to be accessible to the visually impaired, and to permit cross-border exchange of such works.

Controversy

Despite its good intentions, however, the Marrakesh Treaty has not been without controversy and many developed countries have not yet ratified it (although Australia, Canada and South Korea have).

In Europe there has been an ongoing dispute as to whether the European Union has the competence to ratify the treaty independently of the EU Member States. Several countries, including the Czech Republic, Finland, France, Hungary, Lithuania, Romania and the UK, have challenged the EU’s right to enter into the treaty. Some of the objections relate to the EU’s right to regulate cross-border exchanges of goods for non-commercial purposes, while other countries contend that WIPO’s humanitarian intentions are at cross-purposes with the EU’s obligations to liberalise and promote free trade within the bloc.

The dispute has delayed the EU’s ratification of the treaty and a case is currently pending at the Court of Justice of the European Union (although one Advocate-General of the court recently issued an opinion dismissing the Member States’ arguments). In any case, if the CJEU does rule in the European Commission’s favour permitting ratification to go ahead, amendments to the existing EU copyright directive will be required before accession to the treaty will be possible, presumably leading to further delays.

UK

Even if the EU does proceed to amend its copyright legislation and ratify the treaty, it is unclear whether this could happen within a timescale for the changes to take effect in the UK before Brexit is implemented. Nevertheless, the UK does already provide a number of exclusions to copyright intended to benefit the visually impaired. In particular, disabled persons (including the visually impaired) and persons acting for them are permitted to make accessible copies (e.g. Braille or large print) of copyright works without infringing copyright, as can authorised bodies who may also supply disabled persons with intermediate copies of the works, subject to some exceptions.

By Michael Ford, Alistair Hindle Associates

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This entry was posted in Copyright.

UPC Update

The Netherlands ratified the Agreement on a Unified Patent Court (UPC) on 14 September. This now brings to 11 the number of countries who have ratified the UPC Agreement. In order for the UPC Agreement to come into effect, it is necessary for 13 countries to ratify the Agreement, including France, Germany and the UK. As France have already deposited their instruments of ratification, this means that responsibility for triggering the UPC Agreement is now effectively with Germany and the UK.

If and when it comes into force, the UPC Agreement will create the Unitary patent, which will provide a single intellectual property right across many, but not all, EU member states, as an addition to, but not a replacement for, the existing European patent application procedure. At the same time, a Unified Patent Court will be established which will have jurisdiction over European and Unitary patents, including existing European patents, although there will be a transitional period of at least 7 year during which patent owners will be able to opt European patents out of the jurisdiction of this Court.

The UPC Agreement remains threatened by the proposed exit of the UK from the European Union. It remains unclear whether the UPC Agreement may never come into force, or might proceed without the UK, or whether a political and legal way can be found to include the UK even if the UK leaves the European Union. Further comments on the implication of the forthcoming departure of the UK from the European Union are discussed in our article here.

This entry was posted in European Patents.