In light of the recent order of the Office of Chief Commissioner for Persons with Disabilities in Avichal Bhatnagar v. Pralek Prakashan we are pleased to bring to you this guest post by Lakshita Handa and Pragya Singh. Emphasizing the lack of a robust mechanism to ensure access to literary work by persons with disability, the authors highlight how the existing copyright framework comes in conflict with the rights enshrined under the Rights of Persons with Disabilities Act, 2016. Lakshita Handa and Pragya Singh are Research Fellows with the Legal Design and Regulation team at Vidhi Centre for Legal Policy. Their previous posts can be accessed here. Views expressed here are those of the authors’ alone. An interesting side note, one of our former bloggers, Rahul Bajaj, is representing the petitioner in the present case.
Prof. Avichal Bhatnagar v. The CEO, Pralek Prakashan Pvt. Ltd : Taking a Look at The Conundrum Surrounding Copyright Protection vis-a-vis Accessibility for PwDs
By Lakshita Handa and Pragya Singh
The presence of a disability is often conflated with the existence of physical barriers; however, the barrier to accessing information in today’s information age remains one of the most pressing challenges for persons with disabilities (“PwDs”). Data published by the World Blind Union in 2014 indicated that less than 10% of published material was available in accessible format for persons with visual impairment, and most such material was only available in English, thereby leading to a ‘book famine’. In 2024, conclusive data regarding availability of books in various accessible formats remains missing. This is particularly alarming in the context of the Indian publishing industry, where hardcopy publications extend across a range of regional languages in addition to English and Hindi.
A general lack of clarity on the issue of information asymmetry and inaccessibility for PwDs was recently brought to light in the matter of Prof. Avichal Bhatnagar v. The CEO, Pralek Prakashan Pvt. Ltd. A complaint was brought before the Office of Chief Commissioner for Persons with Disabilities (“CCPD”) highlighting the interface between the Rights of Persons with Disabilities Act, 2016 (“RPwD Act”) and the Copyright Act, 1957 (“Copyright Act”).
The complaint was filed on behalf of a doctoral student with visual impairment who required an accessible version of the book ‘Abode of Agony’ published by the Respondent. In its preliminary order issued on May 31, 2024, the CCPD noted that books in accessible format should be made available to academics and readers, although no direction on making an accessible soft copy available to the complainant directly was issued due to the commercial nature of interests involved in the matter, the CCPD was satisfied at the availability of the book on Kindle and directed the Respondent to make the links of the same available the Complainant. Further, while the wider issue of creating an infrastructure for accessible books and other publications was suitably appreciated, the CCPD did not delve into the manner in which the same can be achieved.
This matter brings to the fore the interface between accessibility for PwDs and how there is an inherent emphasis on the commercial nature of copyright interest vested in authors and publishers. On a broad reading, there seems to be an obvious conflict of two areas of law, where the RPwD Act mandates fundamental access to all content but the Copyright Act grants the author the right to control how their works are copied.
Please note that the issue examined under this post does not touch upon aspects of Digital Rights Management (“DRM”) and technology protection measures that are necessary for the protection for the digital copies of original works (which can be read in this article). Rather, the post aims at addressing the larger issue of how existing copyright management frameworks, as a whole and at a conceptual level, are ill-equipped to accommodate inclusive access and why a harmonised approach is necessitated to promote such inclusivity.
Legal Frameworks and the Recognition of Accessibility
The RPwD Act, which brought the domestic legal framework in India in tune with principles contained in the United Nations Convention on Rights of Persons with Disabilities, lays down provisions to ensure that PwDs can live a life of dignity. The Act recognises the need for reasonable accommodation i.e., appropriate modifications or adjustments to ensure that PwDs enjoy their life and exercise rights equally with others. Section 42 of the Act places an obligation on the appropriate government to ensure that all contents available in audio, print and electronic media are in accessible format. The Draft National Policy for Persons with Disabilities also provides for the need to develop accessible e-content for all course curriculum and reference book materials. This, coupled with the Government’s Sugamya Pustakalaya online library initiative to end the ‘book famine’ faced by people with print disabilities, indicates the overarching mission to facilitate accessibility of books in diverse languages.
Notably, WIPO had adopted the Marrakesh Treaty in 2013 to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. The Treaty mandates member countries to enforce exceptions or limitations in their respective copyright laws to allow for reproduction and distribution of accessible copies of original works for PwDs. The Treaty further provides that the reproduction of original work must either be done by the PwD themselves or by authorised entities, who may control distribution of accessible copies whilst ensuring that the same is not carried out for unauthorised purposes. The Treaty represented a significant step towards making books available to everyone in accessible formats such as Braille, audio or large print.
Fair Dealing under Copyright Law
The Copyright Act was amended in 2012 to include an exception to the copyright of authors with respect to accessibility through section 52 (1)(zb). The exception allows a PwD or an organisation acting on behalf of them to create an accessible copy of any work, without the consent of the author of the original work, for private/ personal use, or for educational/research purposes. It is necessary to note that the original work that is converted into an accessible copy must be acquired legally. The accessible copy cannot be commercialised or used for profit and the PwD or organisation making such a copy is required to take appropriate measures to ensure that such copies do not enter into ordinary channels of business.
Limitations of the Existing Regime
Copyright law operates in the balance of an author’s right to profit from their work and the general public’s need to access such work. However, in the case of PwDs, the law places onerous obligations on them to access copyrighted works, so as to protect the commercial nature of interests vested in the work, as evident from the accompanying conditions u/s 52(1)(zb) above. This imbalance of rights may not be overt in the text of the legislation for some, yet an analysis of the intersection reveals these implications. Transforming copyrighted work into accessible copies requires a considerable amount of effort which entails acquiring the inaccessible market copy, spending money and time to convert the same into an accessible one and then taking suitable measures for restricting it to private use. Two things become apparent here: first, that there is an initial absence of accessible copies in the market and second, even after conversion of an available non-accessible copy by an individual, the larger community may continue to lack access to the same work. The ‘act’ of conversion is also not a mandate by law that the author has to follow but an action that is protected post facto by way of an exception to the protection granted. The copies are made accessible rather than being born accessible, which is the core issue with the current legal regime.
Hardcopies of literary works and their regulation by way of copyright, despite being the primary mode of information sharing in human society, has not evolved to accommodate accessibility of the medium for PwDs. Under the current copyright framework, although fair use permits the creation of accessible copies, authors and publishers remain cautious due to concerns about potential copyright infringement. However, it’s important to note that technological measures like DRMs can effectively manage distribution. Therefore, if publishers initially release accessible copies with appropriate DRMs, they could control access while ensuring availability of books in various formats for PwDs. Even in the matter before the CCPD, the Commissioner was of the opinion that there are commercial interests at stake even though the complainant’s request fell squarely in the bracket of fair dealing protected by the Copyright Act. Hence, instead of harking back on the existence of the exception, there is a pressing need to analyse how the current system of permissions and licences blocks the free-market availability of accessible copies impacting PwDs substantially.
A counter approach to this was taken in the United States, wherein the Rehabilitation Act, 1973 along with the Copyright Act,1976 entrenched ‘third-party-rights’ in schools, libraries and other government agencies to create accessible copies of books. This created a ‘third-party accessibility model’ where if these parties received federal funding, they were mandated by law to create accessible copies of existing works. The United States’ ‘third-party model’ although granted the third-parties the capacity to goad publishers and authors to make their works available to them for conversion to accessible copies, it remained a time-taking and challenging process as authors at times refused to engage with such requests on priority basis. It also highlighted how the authors and publishers continue to not directly produce works which are accessible for PwDs. However, the Congress hearings following the implementation of these laws reinforced the idea that making accessible copies available was a necessary requirement for both authors and publishers. The entry of accessible copies in that market continues to happen either through un-funded/ meagrely funded third-party efforts, or personal copying of the original work in accessible formats.
A pertinent example reflecting the mainstreaming of accessibility concerns can be seen in the regulation of film and television content through sub-titling. Instead of casting the onus of creating accessible content on the PwD or third-parties, laws and policies place the responsibility of making accessible content on the creators. Subtitles, which are derivative works of the original content, are protected by copyright; however, to universally access video content in cinemas and on television, subtitles, audio-descriptors and other accessibility aids are necessary. To ensure that such media is accessible to a majority of audience, the Ministry of Information and Broadcasting published the Accessibility Standards for Television Programmes for Hearing Impaired in 2021 and the Guidelines for Accessibility Standards in the Public Exhibition of Feature Films in Cinema Theatres for Persons with Hearing and Visual Impairment in 2024, whereby broadcasters and producers have to provide various accessibility tools for their content.
Conclusion
While the current regime provides an exemption, it still places the burden, both financially and otherwise, entirely on the PwD or their organisation to create an accessible copy. Limiting access to such exemptions prevents the mainstreaming of accessibility in all kinds of digital publishing. Books will become accessible when publishers produce in accessible formats and organisations producing and distributing books to PwDs have the skills and capacity to undertake this work. Finding ways to produce accessible formats in a cost-effective manner can promote inclusive publishing and in turn, transform the lives of millions of people with visual impairments.
