NLSIU Conference on Access to Copyrighted Works for Persons with Disability: An enriching experience

The blog post authored by Abolee Vaidya and Nuhar Bansal was published in SINAPSE on December 14, 2015. Pranesh Prakash was a speaker at this event.

The Chief Guest of the conference was Ms. Aparna Sharma, who is the Joint Secretary and Registrar of Copyrights, MHRD. She pointed out at the very onset that it was very opportune for the conference to be hosted on the Constitution Day as what could have been a better day to talk about equal opportunity and non-discrimination.

The conference was roughly divided into three sessions which covered the following perspectives: a brief overview of the treaty, the Indian Copyright Law provisions and the implications of the both of them on stakeholders and beneficiaries in India. Mr. G. R. Raghavender, Director IPR, Department of Industrial Policy and Promotion, GoI, chaired the first two sessions and told us about how ‘Sparsh’, the 1980 film starring Naseeruddin Shah as a blind teacher, triggered his conscience.

World Intellectual Property Organization (WIPO) conducted a study in 2006 on the extent of execution of Copyright provisions with regard to limitations and exceptions to Copyright for people with disability. The concluding observations were quite disappointing, which is how the talks about the Marrakesh Treaty commenced. He then gave us insights into the negotiations that went into finalizing the treaty, how the World Blind Union played an extremely instrumental role in getting the treaty through and also how Brazil recently became the 12^th country to ratify the treaty.

Mr. Raghavender further shed some light on the basic scope of the treaty:

1. Addressing the book famine by introducing limitations and exceptions to the rights of the Copyright holder. In this context, most states wanted to restrict the definition of ‘works’ under the treaty to ‘physical books’ and not artistic or audiovisual works. Although, that was not agreed to as audio description is crucial to modern online education in all ways. The international publishing community opposed most of the provisions during negotiation. They argued that publishing accessible copies of their published work would increase the cost of production and subsequently the market price of the work, due to which, majority of the disabled population wouldn’t be able to afford it anyway. Besides, whether the commercial want for the existent printed material in the market would be affected or the sighted consumers would take advantage of the accessible versions in the market are other issues that were brought up.
2. What kind of limitations and exceptions should be imposed? The developed countries opposed liberal interpretations and exceptions to the treaty. Owing to political influences, translation and public redistribution rights were also proposed to be limited and to be granted only to developing and least developed countries under compulsory Licensing, and in no other circumstances. The proposal allowed for reproduction, distribution and access to all content except audiovisual, excluding translation and public performance rights from the exception ambit. The Vienna Convention for Law of Treaties was referred to quite often for a thorough understanding.
3. Easier cross border exchange of works- Bigger nations wanted tie-ups with certain commercially available entities across nations for particular exchange purposes thus resulting in it becoming just a business and curbing accessibility. This was negotiated upon and dismissed.
4. Technological Protection Measures- Mr. Raghavendra spoke about extending the Berne Convention to digital works too so that re-encrypting digital works for the disabled does not qualify as infringement. He also stated how there needs to be more clarity as to the usage and breaking of digital locks.

Prof. T. Ramakrishna, MHRD Chair Professor on IPR , NLSIU launched their website iprindia.law.org, which is a one-stop place to find research material on Indian Intellectual Property law.

It was then followed by a presentation by the students of NLSIU on the basics of Marrakesh Treaty where it was concisely presented as to what the treaty means to the countries ratifying it.

Only 1-7% of the world’s books are available in accessible formats, largely due to Copyright hurdles and Marrakesh treaty intends to help in 2 ways:

1. Exception in domestic law of every ratifying country to ensure that they allow the print disabled and blind to convert texts into accessible formats without having to first take permission from the Copyright holder.
2. Cross border exchange of accessible version of books without permission. This will help avoid illegal duplication of transcripts and also allow countries with larger collection of such works to share it with other nations in need.
3. Specific articles that enable a relatively wide interpretation of the provisions to help make the texts more easily accessible.

Dr. Kalyan. C. Kankanala (Managing Partner BananaIP Counsels, visiting faculty NLSIU and guest faculty IIMB) was the first speaker of the session and he started with a recommendation for the government to make all government documents accessible as a first step of implementing the Marrakesh Treaty. He then went on to tell us how he lost vision in 1998 and found it very hard to access the curriculum related texts. Despite the best of efforts that he could muster, he was able to access barely 10% of the total material. He said that irrespective of how able you are, if your ability cannot access the fodder it is supposed to thrive on then there can be no scope for development. Today, information is available at the click of a button and your ability to succeed and not be discriminated against depends on how fast you access this information. Keeping this in mind, if there is no provision to make other more technologically advanced forms of information also accessible, it is not going to be a sustainable option. Most of the information today is in a non-literary format and to access that, a lot of other barriers have to be broken, which can result in simultaneous Copyright, Trademark and Patent infringement, which the Marrakesh Treaty cannot protect you against. To enable equal opportunity in reality, exceptions should flow under a bunch of laws and not just Copyright. What we face today is an information famine and not just a book famine. The solution lies with the publishing community. Because, the technological tools that the laws can equip us with, will fall short of some or the other parameter at some time and that defeats the aim of equal opportunity. So if the publishing community itself releases accessible versions along side their publications for the sighted consumers, we would have a sustainable solution. Also, the number of authorized entities should be made significantly high because greater the number of authorized entities, greater the chances of the publishers sensing competition and realizing that a commercial model around making accessible books available would be better for their business. He further said that the scope of definitions of terms used in the treaty are not as problematic as certain other areas like what kind of works are covered, what kind of disabilities are covered, what rights are covered and mandated. Nevertheless, the treaty has been negotiated and signed and going to bring out some sort of a positive change if not a revolution, so to say.

Dr. S. Elumalai, Assistant Professor, Dr. Ambedkar Law University, Tamil Nadu, was the next speaker and he had some wonderful insights to offer. He said that the PWD Act qualifies a person as disabled only if he has more than 40% disability. Whereas, the Marrakesh Treaty addresses reading disability on the whole, which is very important. In fact, it also enables the caretaker and caregiver of the so disabled to claim accessibility rights under the treaty unlike any Indian legislation. He pointed out how our own government machinery is not disabled friendly, to the extent that disabled people are denied higher secondary education and professional education in government institutes. He stated that the government should help the disabled people help themselves and that can be achieved by training the authorized entities to be technologically up to date. The RTI Act talks about accessible formats of texts but the government has done little more than talking in that regard. Understanding that the disabled people are a minority and hence not a force influential enough to manipulate the demand-supply cycle of the market, it becomes all the more important for strong regulatory mechanisms to interfere. The government needs to step in and step up, the stakeholders need to be pro active, the authorized entities and the publishers should know their rights and duties and the disabled people should be made a part of the decision making process from scratch to resolve any moral right conflict that might arise between the above listed parties.

Mr. Pranesh Prakash, Policy Director CIS, was up next on the panel and brought a refreshingly dramatic change to the proceedings of the conference. He said that talks about the formation of this treaty began around 1982 and were initiated by UNESCO and WIPO. Countries such as Brazil, Ecuador, India etc. saw this treaty as an instrument that would lead to global accessibility. He then pointed out that the super nations trying so hard to restrict the scope of the treaty and exercising the power imbalance in the international arena, reminded him of colonialism. Besides that, the treaty advocates free cross border exchange of accessible information which is in principle against the colonial centralization of international relations. Therefore, the ratification of this treaty comes to him as a tiny war victory and which is why none of the major publishing countries in the world have ratified the treaty. He is strongly of the opinion that making books of any kind available to any kind of people is always good for the publishing industry. The publishers need to understand that the treaty is now providing for legal access to the converted materials as against pirated ones which was the only option until now. However, the Technological Protection Measures are not sufficient under the treaty. They do not provide for circumventing the digital lock on electronic data, as pointed out by Mr. Raghavender earlier. He further clarified that making books available in different formats does not amount to infringement as then books available in the library would also amount to Copyright infringement. Legal provisions should be present which would allow disabled people to access materials because if these provisions were absent then people would try to obtain the same materials by infringing copyrights. As of now, there are organizations that give access to readable software like Jaws. It is not a difficult task to make any work digital, the only problem arises when the work has to be made accessible and the manner in which such accessible material is to be used. It is extremely important to create awareness as how to use the accessible material by the physically disabled. When a book is published, its copy is deposited in all the 4 national libraries and when such a book is deposited, an easier way would be to convert it into electronic medium and convert that into accessible formats. Converting print into accessible medium is extremely difficult and will be much easier once it is electronic medium. He also gave an example of publishing books under the Creative Comments License that would make copies available in the accessible format. Not only should literary works be made accessible but all websites should also be redesigned and made accessible.

At this point, Dr. Kalyan brought up an interesting technicality when he asked Mr. Prakash to clarify that although making copies of any literary work is permitted under this treaty, whether the authenticity of the so called literary work would be in question or not. Because there are a number of pirated materials doing to the rounds of the market for sighted people already, and whether converting one such pirated work in an accessible version would still stand good in law. Mr. Prakash admitted that there is ambiguity in the language of the legislation in this regard, however, a liberal interpretation of the relevant provisions of TRIPS indicates that such minor discrepancies in execution can be exempted at the outset. Something, which Mr. Raghavender, in his dutiful government responsibility, disagreed with and said that all conversions should be made from authentic documents to discourage piracy.

This culminated the first two sessions of the conference and proved to be extremely informative for the participants and audience. The post lunch session of the conference exclusively dealt with the implications of the Marrakesh treaty and Domestic Copyright Law on the Stakeholders and Beneficiaries in India. Prof. Dr. T. Ramakrishna, MHRD Chair Professor on IPR, NLSIU, was the chair/moderator. The first speaker of the afternoon session, Mr. G. Marippan, Asst. Director, Dept. for the Empowerment of Differently Abled and Senior Citizens, Bangalore, gave us all a very bare text understanding of the various provisions under the Karnataka State Government Laws along with the different schemes in place for the benefit of the stakeholders and beneficiaries of the Copyright legislations.

Mr. Gautam Agarwal from the National Federation of the Blind pointed out that less than 1% of the total published print material in the world is available in accessible format as per NFB’s records. With the help of the Marrakesh treaty, countries will overcome legal hurdles to make things accessible and enable cross border exchange. But, he did raise questions as to how efficiently can these provisions be executed to actually help the ones in need. “Law can only facilitate us and show us the path, it is us who will have to do the walking”, he said. Conversion being permitted is merely the preliminary step. But who will do the conversion? What all texts will be converted first and what later? How exactly will they be converted? How will they be circulated? These are all the greater issues that we need to address now. Over 90% of the websites that exist are not accessible and this treaty does not provide for anything to be done about that. Which essentially makes all the online information inaccessible to the disabled. To ensure the right to read to every disabled person at the same time and at a rate as available to the other people, is the simple understanding of the concept of Equal Opportunity in this regard. He reinstated that we are 8 countries short of ratifying the Treaty to make in enforceable and suggested that Indian Government should enter in a dialogue with other nations and encourage and convince them to ratify.

The next speaker was Ms. Madhu Singhal, Managing Trustee, Mitra Jyothi, Bangalore. Their NGO usually provides materials in Braille and large print for persons with disability. She very passionately spoke about sensitization of the publishers as being a very strong influential force in efficient execution of the provisions of the Marrakesh Treaty. She said that merely telling them what to do is not a one step solution. Instead, it is a long procedure which should ideally end in them being mandated into publishing the accessible copies. She also suggested that one database of accessible materials should be created for efficient usage of resources. This way, people across geographical boundaries will know what materials already exist and how to access them, thus reducing the cost of conversion.

Mr. Elumalai was the last speaker for the session and he had a handful of suggestions to make to authorities carrying out the execution of the treaty provisions. He suggested that, for example, if a soft copy of any material is provided to the NIC, then it should be their duty to make it into an accessible format. He also suggested that there could be a reward system in place for the publishing houses that publish accessible formats of their publications or giving tax benefits to people who help in conversion, distribution and access to the accessible formats. He said that disability is as disabling as you let it be. Not having functional body parts is not disability but not wanting to use the existent body parts is.

At the end of the discussion, Mr. Panesh Prakash just brought back some perspective when he asked how many people in the room had ever pirated or bought a pirated version of an accessible format of information. When no one raised their hand, he then pointed out that this is why the publishing community cannot hold ‘exploitation of accessible format by sighted people’ as a valid argument. The treaty might have other flaws but this defense does not apply. He said that there are close to 12 methods as to how a person can apply to the Ministry for obtaining accessible material and all of them are available on the official website, only, not in an accessible format. He let the irony sink in before concluding the session.

That marked the end of the conference, which at the end of the day had being enriching, to say the least. Listening to all the different stakeholders and policy makers and beneficiaries give their perspective over one piece of legislation only makes you realize the multi dimensional impact that laws have on people’s lives.

The Marrakesh treaty stood debated, discussed, dissed and devoured.