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Technology has almost always been light years ahead of the law. We have had technology that could make books available in all sorts of formats for the print disabled/visually impaired, in order to enable them to read, learn and participate in society. However, all these years, the law has inhibited the effective implementation of such technology thereby excluding 285 million visually impaired people (majority of which live in developing countries and of which 47 million live in India) from effectively participating in society. But this has changed with the happening of a miracle – the ‘Miracle at Marrakesh’.
As long back as 1982, the WIPO and the UNESCO created a Working Group on “Access by the Visually and Auditory Handicapped to Material Reproducing Works Produced by Copyright”. Later on in the 2000s the World Blind Union stepped in and took control of the issue. Things gained pace around 2008 and then between 17-28 June, 2013, that the ‘Draft Text of an International Treaty on Limitations and Exceptions for Visually Impaired Persons/Persons with Print Disabilities’ was concluded at Marrakesh, Morocco. This draft treaty is the first major step towards ending the ‘book famine’. See here for the treaty.
Mr. Sam Taraporevala who is the Associate Professor and Head of Department of Sociology at St. Xavier’s College, Mumbai, Director of the Xavier’s Resource Centre for the Visually Challenged and an integral part of the advocacy campaign for the Copyright Amendment Act (2012) on speaking to us stated ‘The Marrakesh Treaty is a major breakthrough as it would be balancing human rights and access on one hand and intellectual property rights on the other. What is significant is that prima facie the treaty has clauses that seem workable. What one looks forward to is the signing and ratification by all countries. We hope that India goes through the process in the next few months. It is very important that the EU nations and the U.S. also sign and ratify the treaty for if they do not, all we will have is a well worded treaty with noble intentions and appropriate systems but no real supply of books which will help remove the book famine.’
In keeping with the fundamental objectives of non-discrimination, equal opportunity, access, complete individual development, effective and inclusive participation in society, the treaty of Marrakesh truly balances human rights and intellectual property rights.
The treaty recognizes the obligation of right holders to make works accessible to persons with visual impairments and to the print disabled, recognizes that though countries have different limitations and exceptions to their copyright laws, a uniform international framework is required to address the needs of this section of society in order to harmonize the law on this point and to ensure cross-border exchange of books in accessible formats.
• Article 2 – of the draft lays down certain important definitions. From the definition of works, it becomes clear that this treaty is applicable to literary and artistic works. ‘Accessible format copy’ is defined to mean a copy of a work in an alternative manner or form in order to enable people with visual impairments to have access to these works ‘as feasibly and comfortably as a person without visual impairments or print disabilities.’ The breadth of this definition is welcoming. However, the US and EU policy on digital locks as well as translation rights may pose a hurdle for the realization of access and availability of such formats. Therefore, though the law requires books to be made available easily, technology and market choices by the US and EU may hinder ‘feasible and comfortable’ access to such formats.
The footnote to Article 7 allows authorized entities to make use of technological measures and says that nothing should disturb such practices if they are in accordance with national laws. As Pranesh Prakash states, there exists a system in the US whereby the blind do not get an automatic right to circumvent digital locks on purchase of books but instead have to obtain permission from the government for the same. This imposes technological barriers to something which is otherwise lawful.
Another area that can impede the enjoyment of a work by the visually impaired/print disabled is the requirement to translate works from major languages like English to local and less popular languages. Since majority of the blind population live in developing nations which have diverse languages, import from the US and other countries would require translation. As Pranesh points out, most of these languages are not profitable markets for publishers. However, if the importing country has non-profit organizations that can translate books themselves a major problem can be solved. The treaty addresses translation rights under Article 4 para 3 which through a footnote which makes reference to the Berne Convention and specifically mentions the right to translation.
It is important to note that while the definition of ‘accessible format copy’ does not limit the kind of format it limits the use of these copies to beneficiaries. This is also a welcome provision as it not only broadens the variety of formats but also limits the possibility of misuse of such copies.
• Article 3 – Another major development has been the inclusion of the ‘print disabled’ as a beneficiary (along with the blind and visually impaired). This is in keeping with the objectives of non-discrimination and equal opportunity. A print disable is someone who cannot access print due to certain visual, physical or cognitive disabilities. Eg., a person who has no hands cannot turn page of a printed book and is print disabled (even though his visions is fine).
• Article 4.2 – The treaty allows the owner of the copyright, the beneficiary (or someone acting on his behalf) or an ‘authorized entity’ (as defined in Article 2) to make an accessible format copy of a work without the authorization of the copyright holder. Moreover, the treaty mandates that such copies be shared only with beneficiaries and be made from lawfully obtained copies. The Indian Copyright Act, after the 2012 amendment also allows – the disabled person and non-profit third parties working for the disabled to convert works into accessible formats without authorization from the right holder.
• Article 5 – Cross border exchange of copyrighted works in accessible formats is one of the primary aims of the treaty. Technologically advanced developed nations have the capability to convert works into various formats, whereas the developing nations may not have the same capabilities. The treaty enables easy access to converted works across borders. This is giant step for ensuring access. However, since the treaty text uses the word ‘may’ and gives an impression that this provision is non-mandatory, the US and EU may take advantage of such language. Moreover, they also seek to limit such exchange only to books that are not commercially available in the exporting nation.
• Article 9 and 14 – The treaty delegates administrative functions to the International Bureau of the WIPO. The International Bureau will also help in facilitating cross border exchange of accessible formats by encouraging voluntary sharing of information so that authorized entities can identify each other. An Assembly to maintain and develop the treaty has also been created. Each Contracting State is represented by one delegate in the Assembly who has one vote.
India’s Role and the Copyright Amendment Act, 2012
In India only 1% of all books are available in accessible formats and it is stated that 47 million of the world’s visually impaired persons stay in India. In order to tackle this deficit, Shamnad, Sam Taraporevala, Rahul Cherain and many others worked towards the realization of the Copyright Amendment Act, 2012. This amendment introduced S. 52(1)(zb) which permits the conversion of a work into any accessible format exclusively for the benefit of persons with disabilities. This amendment came before the Marrakesh Treaty and in all probability would have been have been upheld up as a shining example at the Marrakesh Conference.
Currently, 51 countries have signed this treaty making it the largest number of countries to ever sign a WIPO-administered treaty upon adoption. As per Article 18, the treaty shall enter into force 3 months after 20 countries have ratified the treaty. It is hoped that the treaty provisions get converted into reality!