Copyright v. Exercise of Fundamental rights

Copyright Infringement v. Exercise of Fundamental Rights

India has about 70 million persons who cannot access printed material due to various disabilities, including visual impairment, learning disabilities and physical disabilities that prevent them from holding books or turning pages (“Print Impaired Persons”). The Copyright Act, 1957, does not provide exceptions and limitations for the benefit of Print Impaired Persons as a result of which any conversion of material into accessible formats would require permission of copyright owners. It is noted that publishers do not sell/make available books in accessible formats and are often unwilling to give the necessary permissions required for conversion of books to accessible formats and distribution of the same to Print Impaired Persons. As a result, Print Impaired Persons cannot enjoy printed material without infringement of copyright.

The Constitution to the rescue

The Indian Constitution expressly provides for “equality” (Article 14), “non-discrimination” (Article 15), “freedom of speech and expression” (Article 19) and “right to life” (Article 21).  Indian courts have not yet had the opportunity to pronounce any judgment on whether the Constitution requires that copyright law provide exceptions and limitations to the rights of copyright owners for the benefit of Print Impaired Persons. However, Indian courts have routinely upheld the rights of persons with disability and the Supreme Court has specifically recognized that the “right to life” as enshrined in Article 21 of the Constitution includes right to dignity including basic necessities such as reading and writing[1]. The right to education has also been recognised as a fundamental right. For print impaired persons to enjoy their fundamental rights, it is essential that they have access to material, including but not limited to educational material, in accessible formats. In this context it can be argued that the fundamental rights of Print Impaired Persons are being infringed because the Copyright Act, 1957, does not provide exceptions and limitations for the benefit of Print Impaired Persons.

“Reading in” of provisions in the United Nations Convention on Rights of Persons with Disabilities

India has also signed and ratified the United Nations Convention on Rights of Persons with Disabilities[2] (the “Convention”). The Convention aims to support the full and effective participation of persons with disabilities in social life and development; and to advance the rights and protect the dignity of persons with disabilities and to promote equal access to employment, education, information, goods and services[3].

Ensuring accessibility for persons with disabilities is one of the guiding principles of the Convention[4]. The preamble of the convention recognizes the importance of information in transforming the life of persons with disabilities. Article 4 (General Obligations) of the convention mandates state parties to provide accessible technology for persons with disabilities at affordable costs. Article 9 of the convention further mandates state parties to take appropriate measures to ensure the availability of information to persons with disabilities, at par with the general population[5]. Article 9 also mandates state parties to endeavor to ensure the easy availability of communication and information technology to persons with disabilities at affordable costs. Article 21 of the convention cast an affirmative obligation on the state parties to effectuate the freedom of speech and expression, (including the freedom to seek, receive and impart information). The provision calls for parity between persons with disabilities and others insofar as the freedom of speech and expression are concerned. The convention recognizes the right to receive information as a facet of free speech[6].

In this regard the Convention obligates state parties to;

• Provide information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost;[7]
• Accept and facilitate the use of Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions;[8]
• Ensuring that private entities which provide services to the general public, including through the Internet, provide information and services in accessible and usable formats for persons with disabilities;[9]
• Encourage mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities[10].

Article 30 (3) of the Convention also states that “States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials”.

After the decision of the Supreme Court in Vishaka v. State of Rajasthan[11] it has become a settled position of law that international conventions and norms are to be read into domestic laws in the absence of enacted domestic law, to the extent that there is no inconsistency between them.[12] It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them.[13] The Bombay High Court has in May 2009, “read in” provisions of the Convention into India law in Ranjit Kumar Rajak Vs State Bank of India[14]

The Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act 1995 (the “PD Act”), was enacted with the objective of ensuring equal opportunities for people with disabilities and their full participation in the nation building. The PD Act provides for both preventive and promotional aspects of rehabilitation like education, employment and vocational training, job reservation, research and manpower development, creation of barrier-free environment, rehabilitation of persons with disability, unemployment allowance for the disabled, special insurance scheme for the disabled employees and establishment of homes for persons with severe disability etc. In Javed Abidi v Union of India[15] the Supreme Court observed that the object of the PD Act was to create a barrier-free environment for persons with disability and to make special provisions for the integration of persons with disabilities into the social mainstream apart from the protection of rights, provision of medical care, education, training, employment and rehabilitation. However, an appraisal of the provisions of the PD Act would show that the PD Act does not have provisions regarding the right of the visually challenged to access information. The only provision in this regard in the PD Act concerns the duty of the state to provide text books in special formats for students with disabilities.[16] Hence there is no domestic law as regards the rights of persons with disabilities to access information and provisions of the Convention have to be read into the Copyright Act, 1957.

It is observed that visually impaired persons routinely convert books into accessible formats such as Braille. Without the amendment of the Copyright Act, such conversion would strictly speaking be an infringement of copyright. However, the issue at hand is whether such conversion is the exercise by the visually impaired person of his fundamental rights, and if so, whether the exercise of fundamental rights will override any copyright infringement. The government apparently understands this contradiction and is proposing to amend the Copyright Act to provide for appropriate exceptions and limitations. However till such time as the amendment comes through should visually impaired persons sit around and fail to exercise their fundamental rights?  Interesting question, that!