Response to the Call from Federation of Indian Chambers of Commerce and Industry for Review of the Copyright Act

The Federation of Indian Chambers of Commerce and Industry (FICCI) has recently  constituted a Consultative Working Group to analyse various issues in the Copyright Act. This has been approved by the Department of Industrial Policy and Promotion (DIPP). The group is to be chaired by Shri Amit Khare, Joint Secretary, Department of Higher Education, Ministry of Human Resource Development. The purpose of the Consultative Working Group would be to look into the existing provisions of the copyright law and the proposed amendments, as well as into the international arrangements and suggestions. The Consultative Working Group is expected to submit its report along with amendments or suggestion, as required.

Rahul Cherian of Indojuris and Nirmita Narasimhan of CIS have submitted a report on the provisions of the Copyright Act with respect to the limitations for print disabled persons. This has been submitted in the form of a letter to Sheetal Chopra of FICCI; the letter is reproduced below.

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Sheetal Chopra

Senior Assistant Director and Head

IPR Division

FICCI

Dear Madam:

Subject: Consultative Working Group on Copyright Issues – issues to be addressed by the Consultative Working Group.

As required by you we give below the issues to be addressed by the Consultative Working Group. This document is prepared by Nirmita Narasimhan of the Centre for Internet and Society, Bangalore, and Rahul Cherian Jacob of IndoJuris Law Offices, Chennai. 

Scope - Exceptions and Limitations for Print Impaired Persons

The scope of the issues raised here are limited to the exceptions and limitations under the Copyright Act that are required to facilitate access of books by the visually impaired and other print impaired persons.

Problem faced by Print Impaired Persons

India has approximately 70 million Print Impaired Persons (loosely defined as persons who are unable to access print as a result of disability and include persons who are visually impaired, persons who have learning disabilities such as dyslexia and persons who due to physical disability are unable to hold a book or turn pages) who do not have access to knowledge due to a lack of reading material in accessible formats. It is estimated that even in developed countries not more than 5% of publications get converted into accessible formats for the benefit of Print Impaired Persons. As a result, Print Impaired Persons are excluded from the education system, are unable to seek meaningful employment and are on the whole excluded from all aspects of civil society.

It is observed that publishers do not make available books in formats accessible by Print Impaired Persons and the Copyright Act does not provide exceptions and limitations to the rights of the copyright owner for third parties to convert and make available books in accessible formats for Print Impaired Persons. This has lead to a “book famine” from the perspective of Print Impaired Persons.

Technological Advances and Accessible Formats

Till a few years ago, Print Impaired Persons had to rely on audio files and Braille (in the case of the persons who became visually impaired at a young age) to enjoy printed matter. Each of these formats have severe limitations. For example audio files have to be played serially and navigation is severely limited. In the case of Braille, the printing costs are expensive, reading a Braille book is up to 4 times slower than a normal book, Braille is extremely difficult to learn if you loose sight at a later age, and persons using Braille can communicate only with others who know Braille.  However with the information technology revolution and the creation of text-to-speech screen readers that read out documents in electronic formats to Print Impaired Persons there are now countless ways in which Print Impaired Persons can access books in any easy and simple manner. Specialized electronic formats such as the DAISY Format not only permit the visually impaired to “read” the material using screen readers but also permit a digital file to be printed in Braille for the blind, in large print for the partially sighted and also provide audio with inbuilt search and indexation features for those Print Impaired Persons who have computers. The key is that technological innovation now provides the much-needed flexibility required by Print Impaired Persons to access material in formats they are most comfortable with. However the availability of these technology solutions alone does not solve the problem of dearth of books in formats that can be enjoyed by Print Impaired Persons.

Legal compulsions for providing exceptions and limitations for the benefit of Print Impaired Persons

At present Indian copyright law does not provide exceptions and limitations to the rights of copyright owners for the benefit of Print Impaired Persons. 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 copyright law to provide exceptions and limitations 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. Right to education has also been recognized 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. As present, 70 million Indians cannot enjoy their fundamental rights due to the fact that the Copyright Act does not provide exemptions and limitations for Print Impaired Persons. It is to be noted that about 50 countries around the world already provide copyright exceptions and limitations for the benefit of the visually impaired/printed impaired.

India has also ratified the United Nations Convention on the Rights of Persons with Disabilities and the objects of the aforesaid convention include providing persons with disability, access, on an equal basis with others, to information and communication. Indian courts have read into Indian law provisions of the United Nations Convention on the Rights of Persons with Disabilities. It is also to be noted that the Standing Committee on Copyright and Related Rights of the World Intellectual Property Organisation is currently discussing the proposed WIPO Treaty for Blind, Visually Impaired and Other Reading Disabled Persons.

India has also recognized the requirements of Print Impaired Persons and had circulated draft amendments to the Copyright Act in _________ for feedback and comments from the public. All the leading organisations representing visually impaired persons has submitted their responses stating that the proposed amendments did not adequately meet the requirements of visually impaired persons.

In light of the above the question is not whether exceptions and limitations for the benefit of Print Impaired Persons must be provided (they must), but what form these exceptions and limitations must take.

Exceptions and Limitations – Issues to be considered

Given below are the issues that must be considered when providing exceptions and limitations for the benefit of Print Impaired Persons.

• Beneficiaries – The beneficiaries of any amendment should include all persons with disability who, due to that disability, need an accessible format to access a book to substantially the same degree as a person without a disability. This definition should be functional and not medical since medical definitions cannot be exhaustive.

• Formats – Print Impaired Persons should be able to enjoy the benefits of the information technology revolution in the same way that non-disabled persons have been able to. Any amendment should therefore take into account technological developments and should be format neutral to give full flexibility and utility to Print Impaired Persons. As mentioned above Braille as a format has limited application and a majority of visually impaired persons are not able to use Braille. Moreover, Braille cannot be used by persons with other print impairments such as dyslexia or persons with physical disabilities.

• Permitted Activities – The activities permitted by any amendment should include the making of accessible formats of a work, supplying that accessible format, or copies of that format, to Print Impaired Persons by any means, including by lending or by electronic communication by wire or wireless means, and undertaking any intermediate steps to achieve these objectives.

• Who can conduct the Permitted Activities – It is noted that the cost of making an accessible copy of a book is far higher than the cost of the book itself. It is observed that non-profit organisations have been able to convert only a few thousands books till date due to lack of funds. Print Impaired Persons, their families and other members of their support group also convert books into accessible formats at very high cost. The number of books converted by these persons is also minimal. Keeping in mind the fact that publishers are not selling books in accessible formats there appears to be complete market failure in this area. The solution for this problem appears to be that, apart from non-profit organisations, Print Impaired Persons and their support group being permitted to conduct the Permitted Activities, volunteers and for-profit organisations should also be able to conduct the Permitted Activities. If any of the Permitted Activity is undertaken for profit, then the entity carrying out the Permitted Activity must give notice to, and pay prescribed royalty to the copyright owner. The quantum of royalty payable should be determined keeping in mind the fact that the average income of Print Impaired Persons is far lower than the income of non disabled persons. The possibility of creating a collecting society for this purpose can also be explored.

Conclusion

“Inclusiveness” is the underlying theme of the Indian Constitution and “Inclusion” is a word used liberally by the courts and politicians alike. The Universal Declaration of Human Rights prohibits discrimination on the basis of disability. The United Nations Convention on Rights of Persons of Disabilities 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.

However, these concepts mean nothing to Print Impaired Persons as long as their most basic fundamental rights continue to be denied due to the fact that Indian copyright law does not provide exceptions and limitations for the benefit of Print Impaired Persons.

In light of the above, appropriate amendments must be made to the Copyright Act as soon as possible to remove the barriers placed before Print Impaired Persons that prevent their exercise of fundamental rights.    

If you require any additional information or any clarification regarding the above please let us know. Thank you and best regards,