The Marrakesh Treaty was agreed in June, 2013. Now we are well into 2015 and the EU still has no plan on how to ratify the Treaty. While many other countries have either ratified or, at least, made progress to that end, the EU Council is not moving at all toward ratification. This is in total contradiction of the EU´s legal obligations with the UN Convention on the Rights of Persons with Disabilities.
Here are a few of the poor excuses being used to stall, delay and block EU ratification.
- “It is not EU competence”It clearly is. Both Commission and Council legal services say it is. Here are the legal arguments given by the European Commission in its request for ratification:
“Finally, Article 6 of Directive 2001/29/EC provides comprehensive legal protection for
technological measures used by right holders and Article 6(4) provides that Member States
must ensure that beneficiaries of certain exceptions or limitations benefit from those
exceptions where technological protection measures are in place, in the absence of voluntary
agreements. Articles 3, 4, 7, 10 and 11 of the Treaty affect these provisions of EU law.
As a result, it is considered that:
a) the cross-border exchange of accessible-format copies with third countries is a predominant
element of the Treaty, therefore its relevant articles fall under the common
commercial policy (Article 207 TFEU); and
b) the articles of the Treaty on mandatory exceptions or limitations fall within the scope of
EU law, affect or alter the scope of the common rules, namely those in Directive
2001/29/EC and in any event are within an area which is already largely covered by
EU rules (Article 114 TFEU)8.
The Commission is therefore submitting a proposal for a Council Decision on the conclusion
of the Treaty. In accordance with Article 218(6)(a)(v) of the TFEU, the European Parliament
has to give its consent before the Decision is adopted.”
- “Mixed competence ratification can be just as quick as EU competence”This is totally false because until each and every EU member state ratifies(often through national parliaments), the EU cannot ratify and implement the Treaty. Until all ratify, none have ratified. This will probably take many years and maybe never be completed.
- “We have to wait for the new EU Copyright Directive”This is not necessary because exceptions for disabilities is already foreseen in the current Information Society Directive. If, in the unlikely case, some small legal modifications in EU law are needed, this can be done fairly quickly by means of a narrow, pinpointed legislative procedure.
- “We have to first have national laws ready for implementation”This is not how national implementation of EU law usually works. First, the EU approves its laws and afterwards the EU member states are given a time period for national “transposition” of the new legal framework.
- “Allowing EU competence will be a dangerous precedent for other treaties”The Marrakesh Treaty is based on international human rights obligations and is a very special case that affects people with disabilities. It should not be mixed up with other political or economic questions that are of a very different nature.
- “If it is EU competence it will only count as 1 ratification instead of 28”More than 20 countries (the number needed for the Treaty to go into effect) around the world have either ratified or have started the procedures for ratification. What is most important is that the large proportion of accessible-formatted books in the world that are in EU member states. These books need to be part of the cross-border exchange mechanisms of treaty to make it meaningful for visually impaired persons around the world.