Copyright law provides exceptions to the right of a copyright holder to ensure that there lies a balance between the owner’s financial interest and the general public interest. One such exception to copyright law caters to the visually disabled population to ensure their access to education, employment, and social participation. It was introduced to ensure they get access to the resources in a format they can utilise.
The realisation of the needs for this section of the society took shape with the United Nations Convention on the Rights of Persons with Disabilities (CRPD), 2006 (‘the Convention’). The Convention was expected to form a powerful legal structure to curb the barriers that persons with disabilities were facing. However, it was not as successful and did not solve the ‘book famine’ faced by visually impaired and print disabled people.
The goals that the Convention failed to achieve were reiterated more successfully in the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities (‘the Marrakesh treaty’ or ‘the Treaty’). The Marrakesh treaty aimed to balance human rights and intellectual property rights with the objectives of non-discrimination, equal opportunity and access. Further, the Treaty also recognised the obligation of the intellectual property right holders of making available their works in accessible formats to the print disabled and visually impaired people.
Provisions under Marrakesh treaty
The Marrakesh treaty aims at the establishment of a legal foundation to facilitate extensive dissemination of accessible content while balancing the right of the disabled persons to access and the economic rights of the right holder of the work. It realises the limitations and exceptions that different countries have in respect to their copyright laws and aims to harmonize the law on this point and ensure cross-border exchange of copies of works in accessible formats.
Some of the important provisions of the Treaty are –
- Create exceptions to copyright
Article 4(2) of the Treaty lays down that the Contracting Parties (countries which signed the Treaty) are to craft exceptions in their copyright laws in such a way as to enable authorized entities (any governmentally recognized, non-profit or government organization that provides access to information to beneficiaries on a non-profit basis) to make accessible format copies of works that are lawfully obtained and to disseminate them amongst legally entitled beneficiaries on a non-profit basis.
- Cross-border exchange of copies of works in accessible formats
Article 5(2) of the Treaty provides that authorized entities must be permitted to distribute accessible format copies to foreign authorized entities and beneficiaries who need such accessible copies. This is further strengthened by Article 6 which allows authorized entities in the importing country to obtain accessible format copies without the prior consent of the copyright owner.
- Remove anti-circumvention measures
Article 7 of the Treaty recognizes the obstacle that the anti-circumvention measures pose to access, and thus makes it clear that Contracting Parties are bound to ensure that anti-circumvention measures do not prevent the visually impaired from accessing copyrighted material.
India became the first country to ratify the Marrakesh Treaty in 2014. India introduced the Copyright (Amendment) Act, 2012 to comply with the Treaty. This amendment introduced special provisions for access to the disabled.
Section 52(1)(zb) of Copyright Act, 1957, post the 2012 amendment, provides for fair use of the published work for the benefit of the people who are disabled. It also enables the adaptation, reproduction, issuance of copies or communication to the public of a work in any format that is accessible to the disabled and sharing it with any disabled person for personal use, education or research.
Section 31 B of the amended Copyright Act lays down provisions for the compulsory license in works for the benefit of the persons with disability. The Copyright Board (IPAB), on receiving a request from such license seeker for a compulsory license, may grant and shall dispose of the application within 2 months. The compulsory license so issued must stipulate the means and format of publication, the term of the compulsory license and the number of replicas that may be provided including the rate of royalty to be delivered.
Further, the Rights of Persons with Disabilities Act, 2016 was enacted and Section 12 and 42 required all the government offices and departments to make documents and facilities accessible to persons with disabilities. It is important to note that India appreciated the need for special provisions for the benefit of this neglected section of the society before it actually ratified the Marrakesh Treaty. The inclusion of these special provisions gave a ray of hope to the printed disabled and visually impaired persons and also brought them at par with the other persons.
Success of the Marrakesh Treaty
To curb the shortcomings of the Marrakesh treaty and for its better implementation, WIPO Standing Committee on Copyright and Related Rights (SCCR) is currently carrying scoping studies on the limitations and exceptions that the countries were required to introduce in their domestic laws under the Marrakesh treaty for the benefit of the disabled persons. In its 35th session, the considerations were addressed in the Scoping Study on Access to Copyright Protected Works by Persons with Disabilities. This study majorly identifies the relevant categories of disabilities, relevant categories of protected works, existing and likely future accessibility techniques and technologies that can be used to transform the categories of the work and copyright and related rights protection implications. Further, it also marks the importance of the introducing copyright limitation and exception for libraries and archives.
In its 36th session which was held from May 28 – June 1, 2018, the Chair published an action plan whichinteralia focuses to (i) develop a typology of various existing legislative and other mechanisms related to the application of the limitations and exceptions regime first on libraries, and subsequently on archives and museums; (ii) to commission and undertake a scoping study focused on archives. (iii) to complete the ongoing scoping study on museums;(iv) to undertake a brainstorming exercise on libraries with professionals and respective stakeholders including publishers and consumers, to identify subjects that would benefit from further work at the international level (e.g. cross-border e-lending); (v) to conduct up to two regional seminars upon request, with SCCR Members and stakeholders, with an objective to analyse the situation of libraries, archives and museums as well as educational and research institutions, and areas for action, with respect to the limitations and exceptions regime and the specification of the region.
The aforementioned Chair’s action plan also addressed the educational and research institutions for persons with other disabilities and suggested that two additional studies shall be commissioned –
- On digital issues at stake for the activities of educational and research institutions at the national and international level, including the aspects related to limitations and exceptions. The study would cover areas such as the availability of e-learning modules and the development and operation of distance learning including massive open online courses and would identify possible areas that would benefit from further work at the international level.
- Further study on whether the use of accessibility techniques and technologies may implicate exclusive rights in the categories of works protected by copyright and related rights.
The 37th session will be taking place in Geneva from 26 – 30 November, 2018. The focus would be on the preliminary developments in the action plan pertaining to limitations and exceptions for libraries and archives, and limitations and exceptions for educational and research institutions and for persons with other disabilities. The complete findings on the ongoing scoping study on museums will also be reported. These sessions are a way forward in realising and shaping up the promises laid down in the Marrakesh Treaty for its adoption by the maximum number of countries.
Further, though the Marrakesh treaty addressed the long-neglected problem, there are few areas which were left untouched in the Treaty. The first issue is true. Another issue is that Worst of all, a copyright exception does not create any accountability.
India is home to approximately 20% of the world’s visually impaired population. However, only 1% of all books are available in accessible formats to the same. It will, therefore, not be wrong to overstate the importance of the objectives laid down in the Marrakesh treaty.
The treaty was considered to be too ambitious without a robust plan to cater to the issue. There are a few issues with the treaty –
- Making available accessible format for every book is time taking and not cost effective. Developing countries find this to be the biggest deterrent.
- The Treaty totally left out the scenario where the book already exists in an accessible form.
- The Treaty does not address publishers. It surpasses the importance of the publishers with a copyright exception. The needs of publishers must be aligned with those of the print-disabled, the notion of ‘building capacity’ to benefit out of the introduction of copyright exception in the treaty is essentially an enormous task.
Though India was the first to ratify the treaty, it has not been able to do anything fruitful after having these special provisions incorporated into the domestic laws. Not much has changed since the adoption of the treaty as these problems still persist. Sadly, the implementation of the principles laid down in the Treaty leave a lot to be desired. There is a need for more countries to ratify the Treaty to facilitate change at a global level.
DISCLAIMER: The information provided in this article is for educational purposes only. The same cannot be construed as legal advice.
Standing Committee on Copyright and Related Rights, 36th Session
Geneva, May 28 to June 1, 2018, DRAFT ACTION PLANS ON LIMITATIONS AND EXCEPTIONS
THROUGH SCCR/39 (2ND MEETING IN 2019)
 Global Data on Visual impairments, 2010 available at http://www.who.int/blindness/GLOBALDATAFINALforweb.pdf