A "Special" Copyright Victory for the Disabled


Prashant recently highlighted the key findings of a Parliamentary standing committee constituted to study the copyright amendment bill. In particular, the report comes as a huge victory to two sets of stakeholders, namely film/music artists on the one hand (music composers and lyricists who can now claim a good 50% royalty on all exploitations of their work, notwithstanding any assignments) and the disabled or differently-abled communities on the other.
Let me focus on the disability sector in this note. I’ll leave recommendations pertaining to music composers/lyricists (an aspect on which we’d written several times in the past) to a later post.

Our previous posts highlighted the gross inadequacy of the “disability” exception sought to be carved out in the copyright bill. Particularly the fact that the proposed exception was limited to conversions of copyrighted works to only “special” formats.

For those interested, we made written submissions to the Standing Committee on this count. A number of us (led by Sam Taraporewala of the Xavier’s Resource Centre for the Visually Challenged and Rahul Cherian of Inclusive Planet) also appeared in Parliament to depose on this count.

While we appreciated the effort taken by the government in carving out a copyright exception (under section 52) to enable the conversion of copyrighted works to accessible formats by the disabled, we also decried the problematic wording of the proposed exception. As noted in our submission to the Committee:

“The “disability” provisions proposed by the Copyright Bill can be summarised as below:

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:

There must be 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.

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?”

The Standing Committee agreed broadly with our contentions and opined as below in its report:

1. It begins by noting that:

“The Committee takes note of the following shortcomings as pointed by the representatives of two organizations working for the disabled:

i) compulsory licensing system as envisaged in section 31 B would prevent educational institutions, Self Help Groups, other NGOs and reading disabled individuals from undertaking conversion and distribution.

ii) time-consuming and cumbersome procedure for obtaining permissions from Copyright Board.

iii) time involved in subsequent conversions will result in further delays causing hardships for students.

iv) it would discriminate between blind persons knowing Braille and those not knowing.

v) exception as envisaged in Section 52(1) (zb) in favour of only ‘specially designed’ format does not benefit persons affected by cerebral palsy, dyslexia and low vision.”

2. It then takes strong issue with the “special formats” limitation and categorically states that conversions to any accessible format must fall within the scope of the exception. In its words:

“After analysing the proposed amendments as envisaged in section 31B and 52 (1) (zb) in the backdrop of interactions held with various stakeholders and the Department, the Committee strongly feels that concerns raised by the organizations working for the disabled are indeed very genuine. The Committee would like to point out that the real objective behind these two provisions is to facilitate the cause of the disabled. Every attempt needs to be made to remove all the drawbacks highlighted in the proposed amendments.

The Committee is of the firm opinion that all physically challenged need to be benefitted by the proposed amendments. It would be very discriminating if envisaged benefit remains restricted to only visually impaired, leaving out persons affected by cerebral palsy, dyslexia and low vision. The Committee takes note of fact that even regular Braille users complement Braille with other accessible formats like audio, reading material with large fonts and electronic texts. The Committee also observes that the modern day Braille production is dependent on the material being first converted into mainstream electronic formats such as MS Word because Braille translation software requires inputs in such formats.

The Committee hopes that the request of organisations for extending access of works to all accessible formats instead of special formats presently under consideration of the Department will result in a positive outcome.”

3. The Committee states that the compulsory Iicensing provisions should be improved to make it better suit the needs of disabled sections:

“The other request for widening the scope of compulsory licence to allow other entities working for disabled in case it is not possible to withdraw section 31 B also merits a sympathetic consideration by the Department.”

3. The committee was not favourable to the provision for any kind of “fees” to be paid for conversions during the compulsory licensing process:

“Committee’s attention was drawn to another negative aspect arising out of fees (royalty) likely to be charged for copies going beyond the number of free copies to be specified by the Copyright Board. Committee is well aware of the fact that as only ‘not for profit’ organizations are involved in this area, the issue of potential fees may prove to be a very discouraging factor. Department’s response to this apprehension that an organization registered under section 12A of the Income-Tax Act, 1961 and working primarily for disabled and recognised under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1958 need not pay fee and may get compulsory licence free of charge does not seem to be very convincing. Such a provision needs to be specifically provided in the Act itself. “

It must be noted here that in view of the strong suggestion by the Committee to delete the “special formats” limitation, one does not need a compulsory licensing (CL) provision anymore. The CL provision had been inserted by the government in the Bill only to cover “non special” formats. If the section 52 defence in favour of the disabled is now extended to all accessible formats (including special and not so special formats), the CL provision effectively becomes redundant.

All this has come about owing to sustained advocacy by disability groups and their representatives since the late 1990’s. Of course, it remains to be seen whether the government translates the standing committee recommendations into law. For a standing committee report is not really binding on the government i.e. the government can chose to ignore it completely and bring forward the very same Copyright Bill that it had introduced the last time around. But given the political fall out of any move that ignores the interests of the disabled sections and goes against the findings of a Parliamentary committee on this count (expressly supporting the interests of the disabled), it is highly unlikely that the government would incur such a risk.

As we await further government action on this count, let me leave you with a beautiful sentiment expressed by the inimitable Stevie Wonder, in his address to WIPO delegates:

“Your love is the key to unlock the blinders that block access to materials …for those with print disabilities.”

Let’s hope that the government shows some love and implements the recommendations of the Standing Committee in a meaningful manner…and that India takes a historic step towards ending a book famine that has plagued the differently-abled for many centuries now.

ps: image from here

Shamnad Basheer

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.

One comment.

  1. AvatarManish Ranjan

    Indeed its a big victory for the rights of the disabled. But in future, the government should draft bills in a transparent and open manner,rather than being opaque as was the case with the copyright bill

    Reply

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