Copyright

Andhaakaanoon: An Obtuse Copyright Exception for the Disabled?


In previous posts, I noted the need for a meaningful copyright exception in favour of the “disabled”, a category not necessarily limited to those that are visually impaired, but includes any person unable to enjoy copyrighted works in their “normal” format. Illustratively, legendary scientist Stephen Hawking who suffers from ALP (Amyotrophic Lateral Sclerosis) is unable to read a printed book, but has to have this book digitized and then filtered through special software which reads it out to him.
Many of us had pinned our hopes on the present copyright bill to offer a meaningful exception in this regard–an exception that would set standards for the rest of the world and live upto the vision of our founding fathers (and mothers) for a socially progressive and inclusive India. After having seen the most recent version of the bill, our hopes were shattered.

Better no exception than such an obnoxiously articulated and appallingly onerous provision, craftily engineered for sub-optimal use! I reproduce the provision below so that you may satisfy yourself personally on this facetious drafting effort:

Section 52 (1) (zb): The adaptation, reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such work in their normal format.

Section 31B (1): An organization, registered under section 12A of the income tax act, 1961 and working primarily for the benefit of persons with disability, and recognized under chapter X of the persons with disabilities (equal opportunities, protection of rights and full participation) act, 1995, may apply to the Copyright Board, in such form and manner and accompanied by such fee as may be prescribed, for a compulsory license to publish any work in which copyright subsists for the benefit of such persons, in a case to which clause (zb) of subsection (1) of section 52 does not apply, and the Copyright Board shall dispose of such application as expeditiously as possible and endeavor shall be made to dispose off such application within a period of two months from the date of receipt of the application..

(2) The Copyright Board may, upon receiving an application under subsection (1) inquire, or direct such inquiry as it considers necessary, to establish the credentials of the applicant and satisfy itself that the application has been made in good faith.

(3) If the Copyright Board is satisfied, after giving to the owners of rights in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, that a compulsory license needs to be issued to make the work available to the disabled, it may direct the Registrar of Copyrights to grant to the applicant such a license to publish the work.

(4) Every compulsory license issued under this section shall specify the means and format of publication, the period during which the compulsory license may be exercised and, in the case of issue of copies, the number of copies that may be issued.

Provided that where the Board has issued such a compulsory license, it may on further application and after giving reasonable opportunity to the owner of the rights, extend the period of such compulsory license and allow the issue of more copies as it may deem fit.

(5) The Copyright Board may specify the number of copies that may be published without payment of royalty and the fix the rate of royalty for the remaining copies.

De-coding the Above Provisions:

Essentially, what the above provisions entail is this:

1. Only formats that are specially created to cater to the needs of the disabled (such as Braille) will fall within the section 52 exception.

2. For any other format, one requires a compulsory licence. However, such a licence cannot be applied for by the intended beneficiary, but only by a narrow group of organisations that comply with stringent criteria.

The problems with the above framework may be obvious to anyone sensitive to the present societal structure that disadvantages the disabled at every turn. For one, “special formats” such as Braille cater to a minuscule portion of the total community of those that we chose to label as the “disabled” or the “differently-abled”. Even amongst the visually impaired, not every one is familiar with Braille.

Given that we now live in the so called “digital” era, what works best for most of the visually impaired are electronic versions of text that can be read out using a screen reader software (such as Jaws or Orca). Unfortunately, “electronic” versions that are created by scanning printed text will not necessarily qualify as “special formats”..for such electronic versions can be accessed by one and all. Indeed, that precisely is why offerings such as Kindle and Google books are a big commercial hit…for their major market comprises the not so differently-abled.

Article 14 (and 21) of the Indian Constitution and Discrimination

What of those that are not visually impaired, such as Stephen Hawkings, who suffers ALP and cannot access printed formats? An exception in favour of “special formats” will not help him or those that are similarly situated to him in India. Article 14 of our Constitution mandates that the State shall not “discriminate”. Isn’t this discrimination of the highest order?

Further, the State must appreciate that it has a constitutional duty to provide a decent standard of living to all its citizens; indeed Article 21 has been interpreted several times to include a meaningful right to life. Such a right to life would also include the right to read (particularly re: educational materials) and participate more meaningfully in society.

If an Article 21 action were brought against the State, a progressive court would rule that the State is under a positive mandate to provide “accessible” reading material for the disabled. The State must appreciate that providing a copyright exception to enable the disabled to create accessible works, on their own, will not necessarily comply with the Article 21 mandate. And yet, this is all that the disabled community is asking for now. Viewed in this light, the State’s failure to provide for a meaningful copyright exception is an egregious transgression of their constitutional mandate.

An Onerous Compulsory Licensing Provision

The State may of course argue that in respect of “non special” formats, they have doled out a largesse in the form of a compulsory licensing provision. However, a compulsory licensing provision is not as advantageous as a blanket exception in favour of “special formats”..and therefore is no answer to a charge of discrimination. In other words, those that wish to avail of “non special” formats are still disadvantaged compared to their “special format” peers, in that they will have to apply for a compulsory licence, wait for the copyright board to decide and pay royalties as well.

Oops, sorry…they cannot apply for the licence themselves! Rather, only organisations that comply with the following can:

i) An organization, registered under section 12A of the income tax act, 1961 (act 43 of 1961);
ii) Working primarily for the benefit of persons with disability; and
iii) Recognized under chapter X of the persons with disabilities (equal opportunities, protection of rights and full participation) act, 1995 (act 1 of 1996)

Perhaps the total number of Indian organisations that comply with all of the above criteria can be counted at ones finger tips! But the farce does not end here. The body vested with the right to issue compulsory licenses is the Copyright Board, a board that has not done much to merit the confidence of any copyright stakeholder, ever since it began functioning. In fact, it has been dodged with controversy time and again, and most recently with the compulsory licensing wars between radio stations and sound recording majors over royalty rates to be payed by the radio stations.

We blogged on this controversy several times, and even questioned the competence of the current Chairman to head the proceedings. The Board has taken more than 2 years to decide royalty rates in this context…how long will it take to decide the rates per book to be digitized for the disabled, one wonders? And how will long will it take to satisfy itself that the few select organisations that are privileged enough to meet the threshold criteria in section 31 are actually “credible” enough and are submitting the application in “good faith”?

It’s a good thing that the time frame for the CL application is capped at 3 months–but don’t we all know that all it takes for a de facto extension of this time line is to drag the proceedings to a court of law?

Potential Abuse and Suggested Provision:

The government may perhaps be concerned at the potential abuse of any “disability” related copyright exception, and may have therefore stipulated strict safeguards. But doesn’t our law leave the monitoring of infringement to the copyright owner? In much the same way, shouldn’t the law also leave the monitoring of any use that allegedly falls outside the scope of the copyright exceptions to the copyright owner? A second best option would be to insist that the service provider who creates “accessible versions” and makes available any copyrighted work for the benefit of the disabled has to take “reasonable measures” to ensure that the intended beneficiary does indeed belong to the disabled community. In any case, even with slip ups and the non detection of uses by folks other than the disabled, how much of a revenue loss to publishers are we really speaking about here?

In a previous post, I suggested a draft provision that had been worked out by a group of us that have come together for this cause as the “Coalition for an Inclusive Society”:

Section 52 (1) (za) (i): The making of an accessible version of a copyrighted work or the doing of any other act including reproducing, adapting and making available the copyrighted work or accessible version thereof, with the primary objective of enabling persons with visual, aural or other disabilities to access copyrighted works as flexibly and comfortably as persons without such disabilities.

Provided that if any person wishes to undertake any of the above activities on a for profit basis, it shall pay such remuneration to copyright owners as may be prescribed by the Copyright Board from time to time. For the purpose of determining remuneration, the Copyright Board shall take into consideration the need to ensure that works are accessible and available at prices that are affordable, taking into account disparities of incomes for persons who are disabled.

Provided further that a person doing any of the acts under this section shall take reasonable measures to ensure that the end beneficiary is a person with a disability.

Section 52 (1) (za) (ii): For the purpose of Section 52 (1) (za) (i)”accessible version” means any version or form which gives a disabled person access to the work as flexibly and comfortably as a person without a disability, and shall include, but not be limited to, large print, with different typefaces and sizes all being permitted according to need, Braille, audio recordings, digital copies compatible with screen readers or refreshable Braille and audiovisual works with audio and or text description.

I had also thrown up a more elaborate version of this provision on our collaborative law making platform (CLAM) and received useful inputs from some of you.

Conclusion

Let me end with a question that has been plaguing me for sometime now:

Was the proposed copyright exception in the current Bill craftily engineered for sub optimal use? Was it tailor made to fail? Or like most other special interest influences in IP law making in this country today, does it demonstrate the powerful influence of the publisher lobby? Or is this joke of a provision meant to bring some humour into an otherwise serious statute? Or does it simply reflect a fatal failure to consult the disabled community in a meaningful manner and receive their inputs on whether such a scheme would work for them?

Your guess is as good as mine.

ps: image from here

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

2 comments.

  1. Shamnad Basheer

    I’m sorry that the first post published without being complete.
    I’ve therefore now made it more complete by adding:

    i) the Article 21 “right to life” argument
    ii) a proposed copyright exception that can better address the needs of the disabled.

    Reply
  2. Vinod Ranganath

    Would like to know does the Amendment specify royalties for TV script writers? Copyright protection and authorship to TV Script writers? Does the word Cinematograph Film include Television?

    Reply

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