PERMITTED USE OF CERTAIN WORKS AND OTHER SUBJECT MATTER PROTECTED BY COPYRIGHT AND RELATED RIGHTS FOR THE BENEFIT OF

SUBJECT MATTER PROTECTED BY COPYRIGHT AND

RELATED RIGHTS FOR THE BENEFIT OF PERSONS WHO

ARE BLIND, VISUALLY IMPAIRED OR OTHERWISE

PRINT-DISABLED

SUBSIDIARY LEGISLATION 460.36

PERMITTED USE OF CERTAIN WORKS AND OTHER

SUBJECT MATTER PROTECTED BY COPYRIGHT

AND RELATED RIGHTS FOR THE BENEFIT OF

PERSONS WHO ARE BLIND, VISUALLY IMPAIRED

OR OTHERWISE PRINT-DISABLED ORDER

13th November, 2018

LEGAL NOTICE 382 of 2018.

(1)

The title of this Order is the Permitted Use of

Certain Works and Other Subject Matter Protected by Copyright and

Related Rights for the Benefit of Persons who are Blind, Visually

Impaired or Otherwise Print-Disabled Order.

(2)

This Order aims to establish rules on the use of certain

works and other subject matter without the authorisation of the right-

holder, for the benefit of persons who are blind, visually impaired or

otherwise print-disabled.

(3)

This Order transposes Directive (EU) 2017/1564 of the

European Parliament and of the Council of 13 September 2017 on

certain permitted uses of certain works and other subject matter

protected by copyright and related rights for the benefit of persons

who are blind, visually impaired or otherwise print-disabled and

amending Directive 2001/29/EC on the harmonisation of certain

aspects of copyright and related rights in the information society.

In this Order, unless the context otherwise requires

''accessible format copy'' means a copy of a work or other

subject matter in an alternative manner or form that gives a

beneficiary person access to the work or other subject matter,

including allowing such person to have access as feasibly and

comfortably as a person without the impairments or disablilities

referred to in relation to a beneficiary person as defined below;

''authorised entity'' means an entity that is authorised or

recognised by Government of Malta to provide education,

instructional training, adaptive reading or information access to

beneficiary persons on a non-profit basis. It also includes any

public institution or non-profit organisation that provides the

same services to beneficiary persons as one of its primary

activities, institutional obligations or as part of its public

interest missions;

SUBJECT MATTER PROTECTED BY COPYRIGHT AND

RELATED RIGHTS FOR THE BENEFIT OF PERSONS WHO

ARE BLIND, VISUALLY IMPAIRED OR OTHERWISE

PRINT-DISABLED

''beneficiary person'' means, regardless of any other

disabilities, a person who

(a)

is blind;

(b)

has a visual impairment which cannot be

improved so as to give the person visual function

substantially equivalent to that of a person who has no

such impairment, and who is, as a result, unable to read

printed works to substantially the same degree as a person

without such an impairment;

(c)

has a perceptual or reading disability and is,

as a result, unable to read printed works to substantially

the same degree as a person without such disability; or

(d)

is otherwise unable, due to a physical

disability, to hold or manipulate a book or to focus or

move their eyes to the extent that would be normally

acceptable for reading;

''the Minister'' means the Minister responsible for

copyright and related rights;

''work or other subject matter'' means a work in the form

of a book, journal, newspaper, magazine or other kind of

writing, notation, including sheet music and related illustrations,

in any media, including in audio form such as audiobooks and in

digital format, which is protected by copyright or related rights

and which is published or otherwise lawfully made publicly

available.

(1) An authorised entity, a beneficiary person, or a person

acting on behalf of a beneficiary person shall require no authorisation

of the right-holder of any copyright or related right in a work or other

subject matter pursuant to Articles 5 and 7 of Directive 96/9/EC,

Articles 2, 3 and 4 of Directive 2001/29/EC, Articles 1(1), 8(2) and (3)

and 9 of Directive 2006/115/EC and Article 4 of Directive 2009/24/EC

as transposed by articles 7, 13, 15, 17, 19 and 25 of the Copyright Act.

(2)

The exception in sub-article (1) shall only apply where it

is necessary for

(a)

a beneficiary person or a person acting on their

behalf, to make an accessible format copy of a work or other

subject matter to which the beneficiary has lawful access for the

exclusive use of the beneficiary person; and

SUBJECT MATTER PROTECTED BY COPYRIGHT AND

RELATED RIGHTS FOR THE BENEFIT OF PERSONS WHO

ARE BLIND, VISUALLY IMPAIRED OR OTHERWISE

PRINT-DISABLED

(b)

an authorised entity to make an accessible format

copy of a work or other subject matter to which it has lawful

access, or to communicate, make available, distribute or lend an

accessible format copy to a beneficiary person or another

authorised entity on a non-profit basis for the purpose of

exclusive use by a beneficiary person

Provided that any accessible format copy of a

work shall respect the integrity of the work or other subject

matter with due consideration given to the changes required to

make the work or other subject matter accessible in the

alternative format.

(3)

Sub-article (1) shall only apply in certain special cases

which do not conflict with a normal exploitation of the work or other

subject matter and do not unreasonably prejudice the legitimate

interests of the right-holder.

(4)

Article 42(2)(a) of the Copyright Act shall apply to the

exception provided for in sub-article (1).

(5)

Any contractual provision running counter to what is

prescribed in sub-article (2) shall be null and void.

(1)

An authorised entity may carry out the acts

referred to in article 3(1)(b) for a beneficiary person or another

authorised entity established in any Member State.

(2)

Authorised entities shall ensure that

(a) beneficiary persons and

authorised

entities

established in any Member State; and

(b) beneficiary persons or other authorised entities

established in Malta,

may obtain or may have access to an accessible format copy from

an authorised entity established in Malta or any other Member

State.

(1)

In carrying out the acts listed in article 4 an

authorised entity shall establish and follow its own procedures to

ensure that it

(a)

distributes, communicates and makes available

accessible format copies only to beneficiary persons or other

authorised entities;

(b)

takes

appropriate

steps

to

discourage

the

SUBJECT MATTER PROTECTED BY COPYRIGHT AND

RELATED RIGHTS FOR THE BENEFIT OF PERSONS WHO

ARE BLIND, VISUALLY IMPAIRED OR OTHERWISE

PRINT-DISABLED

unauthorised reproduction, distribution, communication to the

public or making available to the public of accessible format

copies;

(c)

demonstrates due care in and maintains records of,

its handling of works or other subject matter and of accessible

format copies thereof; and

(d)

publishes and updates on its website if appropriate,

or through other online or offline channels, information on how

it complies with the obligations laid down in paragraphs (a) to

(c).

(2)

In carrying out the acts in article 4, an authorised entity

shall provide the following information in an accessible way, on

request, to the beneficiary persons, other authorised entities or right-

holders

(a)

the list of works or other subject matter for which

it has accessible format copies and the available formats; and

(b)

the name and contact details of the authorised

entities with which it has engaged in the exchange of accessible

format copies pursuant to article 4.

(1)

The office responsible for intellectual property

rights in Malta shall encourage authorised entities established in Malta,

carrying out acts referred to in article 4 and Articles 3 and 4 of

Regulation (EU) 2017/1563, to communicate to the office, on a

voluntary basis, their names and contact details.

(2)

The office shall provide the information received

pursuant to sub-article 6(1) to the European Commission

(1)

The Minister may provide for the establishment of a

compensation scheme following a request from the Minister responsible

for the National Book Council, if it results that local copyright holders

are suffering any harm as a result of accessible format copies being

made

Provided that such compensation scheme would apply

only in respect of uses by authorised entities established in Malta.

(2) When determining whether to establish such a scheme

and the level of compensation, due account is be taken of the non-profit

nature of the activities of authorised entities, of the public interest

objectives pursued by this Order, of the interests of beneficiaries of the

exception, of the possible harm to right-holders and of the need to

SUBJECT MATTER PROTECTED BY COPYRIGHT AND

RELATED RIGHTS FOR THE BENEFIT OF PERSONS WHO

ARE BLIND, VISUALLY IMPAIRED OR OTHERWISE

PRINT-DISABLED

ensure cross-border dissemination of accessible format copies.

(3)

Account is also taken of the particular circumstances of

each case, resulting from the making of a particular accessible format

copy.

(4)

In any case where the harm to a right-holder is minimal,

no obligation for payment of compensation shall arise.

The processing of personal data shall be carried out in

compliance with the Data Protection Act and Processing of Personal

Data (Electronic Communications Sector) Regulations.

The restriction applied to article 9(1)(i) of the Copyright

Act shall not prejudice the application of this Order.