Copyright Access for the Disabled and Collaborative IP Policy

In previous posts, we covered the Right to Read Campaign, a campaign aimed at increasing access to copyrighted works for the print impaired. As many of you know, most works of literature, science and the arts are practically out of bounds for the disabled, unless converted to readable formats such as Braille or digitized and accessed via expensive screen reader software such as JAWS.

Recently, this campaign, the brainchild of CIS and Inclusive Planet, came home to us at NUJS, Kolkata and I was amazed to see the bonding between these children of a lesser god and their struggle to transform society into a more inclusive one. NUJS was particularly fortunate to host this campaign that day, as we have a student (Moiz Tundawalla, who ranks in the top 5 of his class) as well as a faculty member, Dr TV Sudhakar, who are visually impaired.

As part of the campaign, a group of us including Rahul Cherian of Inclusive Planet (and the brain behind Bookbole, one of the most innovative solutions yet catering to the needs of the visually impaired), Sunil Abraham and Nirmita Narasimhan of CIS and Lawrence Liang of ALF began working on a copyright defence that would enable the conversion of copyrighted works to more accessible formats for the disabled..formats that would enable them to enjoy such works as comfortably as the others.

Such a provision is critical, given that hardly 0.5% of all published books are accessible by the print impaired. Further, given the constitutional mandate that each one of us shall have the right to life under Article 21 (which includes the right to education and the right to read) and the right not to be discriminated against (under Article 14), the State is under a positive obligation to provide accessible works to the disabled and thereby help them lead better lives.

The Government Copyright Proposal

This is not to suggest that the Indian government lacks sensitivity on this count. Indeed, it is commendable that as far as back as 2006, the government proposed the introduction of Section 52 (1) (za) to the Copyright Act, 1957 to resolve the issue.

The proposed Section 52 (1) (za) states that the following act shall not constitute an infringement of copyright: “reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed (emphasis added) only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in their normal format.”

While this is a great start, this draft suffers from some serious limitations:

1. Firstly, it restricts permissible formats to those “specially designed” for persons with disabilities. In practical terms, this means that only Braille and sign language is permitted. As many of you may know, Braille is extremely expensive to print and distribute and is not portable. Moreover persons with low vision, dyslexics, people with paralysis, cerebral palsy etc. cannot use Braille and require alternate formats.
   Given recent technological developments and the burgeoning of audio formats and electronic formats that are now used by a large number of visually impaired persons, the exception ought to cover such formats as well... formats that do not strictly constitute "formats specially designed for the disabled". Indeed, any creation of a digitized version of a copyrighted work would enable access by the visually impaired (provided they have tools such as screen reading software on their respective computers).
   We understand that the Indian government wishes to ensure that the defence is availed of only by the disabled and not by others, who may free ride on such an exception. While limiting the exception to “formats specially designed for the disabled” may help achieve this objective, it seriously limits the scope of access by the disabled in this technological day and age, as explained above. Rather than limit the kinds of formats that could be created, we propose that the government restrict access of works created under the aegis of this exception to only people with disabilities. One way to do this is by insisting on reliable certificates that confirm one's status as "differently-abled".
2. Secondly, the proposed amendment fails to ensure that software and other intellectual property protected tools required to create accessible formats and enable persons with disabilities to access such formats are available at a reasonable cost. Illustratively, the most widely used screen reading software, JAWS, is licensed at a whooping Rs 50,000!
3. Thirdly, the proposed amendment must provide wording to the effect that if content owners apply any technology circumvention measures or DRM locks to digital content, they must make available such content to persons with disabilities. Without such provision, the production of talking books or the use of screen reading software for the benefit of the visually impaired will be restricted if the owner of a digital work has prohibited such use of his work.

Thankfully India does not have any specific protection for anti-circumvention measures and DRM as yet. However, we're not sure if the government plans to introduce such a protection via the recent copyright amendment bill that is likely to be introduced in Parliament in December. Unfortunately, the bill is still secret and will be made available for public viewing only after it is introduced in Parliament.

Our Copyright Proposal
We've therefore proposed a more liberal and meaningful exception as below:

• Section 52 (1) (za) (i): The doing of any act, the primary objective of which is to enable persons with disabilities to access copyrighted works as comfortably and flexibly as a person without a disability.
  Such acts shall include, without limitation, the making of any accessible format of a work, reproducing such work/format, adapting such work/format, making available such work/format, lending such works/formats etc. and the provision of any facility that is primarily designed to enable any of the acts contemplated above.
  Provided that if any entity wishes to undertake any of the above activities on a for profit basis, it shall pay such remuneration to copyright owners as may be prescribed by the Copyright Board from time to time. For the purpose of determining remuneration, the Copyright Board shall take into consideration the need to ensure that works are accessible and available at prices that are affordable, taking into account disparities of incomes for persons who are disabled.
  Provided that if any software or other tool that is covered by any intellectual property right is necessary to create accessible formats or to enable access to such formats, or to enable disabled persons to access any work in any manner as contemplated above, such intellectual property protected software or tool shall be licensed at an affordable price, to be determined by the Copyright Board.
  Provided that if any works are protected by technology circumvention measures or subject to DRM limitations that restrict access to the work in any way, the owner of copyright shall grant access to any person who wishes to secure such access for the primary purpose of doing any act contemplated within any of the provisions above.
  Provided that the exemption or other benefits envisaged under this section can be availed of only when reasonable measures have been taken to ensure that the end beneficiary is a person with a disability.
  Provided that if any act done in good faith in pursuance of any of the above provisions falls outside the ambit of such provision, such act shall not be enjoined by an injunction, whether temporary or permanent, but shall be made compensable by payment of a reasonable royalty to be determined by the Copyright Board.
  This provision shall override any conflicting provision in any other legislation, regulation or rule in force in India, only to the extent of such conflict.
• Section 52 (1) (za) (ii): For the purpose of Section 52 (1) (za) (i) "accessible format" means any format or form which gives a disabled person access to the work as flexibly and comfortably as a person without a disability, and shall include, but not be limited to, large print, with different typefaces and sizes all being permitted according to need, Braille, audio recordings, digital copies compatible with screen readers or refreshable Braille and audiovisual works with audio and or text description.

The above section draws from a provision recommended by the World Blind Union and supported by countries such as Brazil and NGO's such as KEI.

Readers will note that the above exception not only caters to the visually impaired, but any differently-abled person who is unable to access copyrighted works as comfortably as others. Illustratively, without the subtitling of audio-visual material, a hearing-impaired persons is unable to enjoy movies, TV programs and other audio-visual material.

CLIPP and Collaborative IP Policy Making

Readers may recollect an initiative called CLIPP (Collaborative Innovation in IP Policy), that we touched upon sometime back, but never really got around to implementing. We are still in the process of designing an appropriate IT architecture to support this endeavour, which will greatly aid transparency and public participation around IP law making in this country.

Till such time as we unleash this specialised architecture, we're trying to see if we can make do with the blogger format. Indeed, if our experiment around the parallel imports provision is anything to go by, where our posts elicited around 50 odd comments that helped suggest ways in which to interpret (and perhaps reword section 107A), there is no reason why the blogger format itself should not suffice.

Leaving comments on posts is fairly easy. You scroll down to the bottom of the post, hit the "post a comment" button and either sign in with your gmail account or click on the "anonymous" tab to post a comment anonymously. You could also chose any other online identity. For those that are averse to using the comments section at the end of this blog post, please free to email me at shamnad[at]gmail.com.

I hope all of you can take some time out to help this worthy cause by inspecting the suggested provision with a fine tooth comb and recommending ways to improve it. I understand that we have many sophisticated copyright experts on our subscriber list ..and I do hope that you will lend your minds and hearts to this cause. Needless to state, a mere copyright provision by itself is not enough--but it will certainly go some way in ensuring that we provide a better and more "inclusive" tomorrow for these children of a lesser god.

ps: Venky Hariharan, a leading open source advocate has referred me to Orca, an open source screen reader software, freely downloadable.

Link to the original blogspot