This article is written by Abhimanyu Yadav, pursuing a Certificate Course in Intellectual Property Law and Prosecution from LawSikho.
Developments in International regime and Indian Copyright Law
Copyright has been a debated issue for people with disability, especially in regards to education. Before electronic texts became popular the print disabled persons faced major problems as to obtaining material in an accessible format. This process was very time consuming before and the publishers were reluctant to provide electronic copies of articles and books. But without electronic copies, permission had to be sought to scan printed text into a digital form that could further be converted into audio or Braille.
Technologies like Braille have been costly to create a burden on visually impaired persons. Taking into consideration the copyright law presents serious hurdles for visually impaired people to have access to written words. Consequentialist theories of copyright elaborate on the idea that we should have laws that produce the best result for society. The Utilitarianism principle of copyright law does not grant unlimited power to the author rather it limits the monopoly an author has over his work. Access to knowledge, books, and other sources of information is an important aspect of our lives. Most of us have access to all of these things but the blind and visually impaired do not have access to these. It is a matter of right that everyone has the right to express and form a well-informed opinion about a particular subject after proper research. The same is the case when it comes to visually impaired or blind persons.
This obstacle has been dealt with within the Marrakesh Treaty by allowing the creation of accessible formats of copyrighted works.
Before we delve further, let’s first understand –
What is Famine?
It refers to the fact that less than 10% of the books and other educational material in developed countries and less than 1% in the developing countries are made into accessible formats in this case into Braille.
Copyright law protects the literary, dramatic musical and artistic work of an author. Copyright law makes it mandatory for people to take permission to use or copy the work of an author. This is a huge problem for VIPs and blind people to face acute “Book Famine”.
According to the research carried out by the World Intellectual Property Organisation in 2006, it was found that there exists copyright disability exception in more than 60 countries which provide for conversion of work into accessible formats for print disabled persons, but there is a restriction on who can convert.
India is home to approximately 47 million print disabled persons and the Indian Copyrights Act, 1957 was deficient to protect the interest of these people, it was only after the amendment in 2012 the print disabled persons were catered. Any conversion of a written article or books into Braille or audiobooks, etc required permission from the author and any conversion without authorisation was termed as an infringement of copyright.
Amendment in Copyright Law in India
The amendment of 2012 did away with such shortcomings and was compliant with the WIPO Copyright Treaty (WCT), Phonograms Treaty and other international treaties in the field of copyrights. The amendment sought exceptions and limitations for print disabled persons. It was meant to ease the restrictions on disabled persons to make the copyright work more accessible with little or no effort. For example Section 53(1): An author of a copyrighted work is granted exclusive rights over his work to use, and reproduce the same. There are certain exceptions to individuals, educational institutions and Non-Governmental Organisations to reproduce the same in accessible formats for the benefit of disabled persons. Though there is a condition on conversions that the books would be used only for personal use or research purposes and cannot be for profit-making. The condition has improved due to various treaties in the field of Copyright. The Act has transformed to accommodate the print disabled persons to have easy access to education and books.
Another law which is to protect the copyright infringement and abuse of conversion of the copyrightable work is Section 31(b) of the Indian Copyrights Act 1957. It prohibits conversion of copyright work and any organisation or NGO’s working for disabled persons cannot convert the work of an author for profit-making. And any organisation working with the disabled and apply for the licence from the copyright board by procedure is laid down in this Section.
Benefits to the Disabled Persons
These provisions in the Indian Copyright Act are inclusive and accommodating for print disabled persons. It gives greater access to creative work and the right to convert the work i.e copyrightable work in any accessible formats through any organisation or themselves without the need to purchase a license. On the condition that the work is not already commercially available.
What is the Marrakesh Treaty?
The Marrakesh Treaty is mainly to facilitate access to copyrighted works of authors for visually disabled, visually impaired or print disabled persons. A conference by the World Intellectual Property Organisation, (WIPO) along with the support of the US delegation in Morocco adopted the Marrakesh Treaty. There are eighty-eight signatories and has been ratified by thirty-three countries.
India has made practical efforts in recent times to accommodate the print disabled person by ratifying the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired, 2013. Through this treaty it has been made mandatory for member countries to enforce exceptions or limitations as need be in their Copyright laws regarding the right to reproduce copyrightable work in accessible formats and also other laws to make education, research more accessible.
This has caused a shift between balancing the authors right and the right to take part in the cultural life in regards to the print disabled persons. Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states that everyone has the right to be protected from moral and material interests which results from any scientific, literary or artistic production of which he is the author. It balances the right of the author with the right of everyone. Article 30 of the CRPD requires all efforts to ensure that persons with disabilities enjoy access to cultural materials in accessible formats. Article 30(3) states that laws protecting intellectual property don’t create barriers for the person with disabilities to have access to cultural materials. This has ultimately led to the adoption of the Marrakesh Treaty. The CRPD Committee has time and again made efforts to call upon states to implement the treaty.
These are human rights obligations and the International organisation further need to analyse the strengths and weaknesses of laws for more/better access to cultural material for persons with disabilities, by making a shift in national laws of a State.
Beyond the Treaty
There are various countries which provide exceptions which are broader than the one provided by Marrakesh Treaty. The treaty does not address the issues of every person with disabilities [only who are hearing-impaired]. In India the Indian Copyright Act allows for exception for the benefit of persons with disability (inclusive of all disabilities requiring special format to access the work).
Digital Rights Management System
Technology particularly digital technology has the potential to transform the lives of sensory-disabled people. The visually impaired can use Artificial intelligence (AI) in their cell phones to give oral commands. They can understand the text through hearing. Screen readers who convert an electronic message to Braille are also available. This advancement in technology has helped the sensory-disabled people.
This further needs to be incorporated and be made mandatory in the policy -making of the state and also in the copyright laws.
This is based upon the idea of inclusion. In cases where a disabled person is not able to enjoy a copyrightable work to the same extent as a person with a similar disability then this exception applies. This exception applies to physical and mental impairments but not too minor cases of visual impairment which can be corrected by glasses. This provides and allows a disabled person to access the work for personal use and further allows libraries to make accessible copies for disabled persons.
‘Accessible work’ can be made by anyone acting on behalf of a disabled person or a friend carer. But this exception does not apply to copies that are obtained unlawfully.
Indian Copyright Law (History)
Several steps have been taken in changing India towards making copyrightable work more accessible. The first being the formation of the DAISY Forum of India in 2007. A coalition of Centre for Internet and Society, Inclusive Planet, media and authors presented a detailed report to the Government of India and highlighted the best practices of copyright exceptions for persons with print disabilities. After witnessing the Marrakesh Treaty there was a major transformation of copyright laws in India in 2012.
The exceptions apply to the visually disabled and persons with other forms of disabilities. The exceptions include all type of works and are not only limited to literary work. A compulsory license is available for purposes not covered using fair dealing. Copyright laws in India have become more accommodating after India became a signatory to the Marrakesh Treaty.
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