RIGHT TO KNOWLEDGE FOR PERSONS WITH PRINT IMPAIRMENT: A PROPOSAL TO AMEND THE INDIAN COPYRIGHT REGIME November 2009
Inclusive Planet Mu!"ai T#e Cent$e %&$ Inte$net ' S&ciet( )an*al&$e Alte$native La+ F&$u! )an*al&$e
CONTENTS
Page No.
INTRODUCTION
4
PART I – COPYRIGHT PHILOSOPHY
Philosophy of Copyright and Balancing Stakeholders !nterests P#blic !nterest in Copyright$ !ndia
PART II - R IGHTS IGHTS OF PERSONS
" %%
INDIAN LAW WITH DISABILITIES UNDER I
&rticle %4 ' (ight to )*#ality
%+
&rticle %, ' (ight to Non-iscrimination
20
&rticle %9/%/a ' (ight to 1reedom of Speech and )pression
22
&rticle 2% ' (ight to 3ife and Personal 3iberty
2,
&rticle 2%& ' (ight to )d#cation
2+
he +5th Constit#tional &mendment
29
he (ight of Children to 1ree and Comp#lsory )d#cation &ct6 2009
7%
he Persons 8ith isabilities &ct6 %99,
7%
National Policy for Persons 8ith isabilities6 2005
72
he )leventh 1ive-ear Plan
74
IGHTS OF PERSONS WITH DISABILITIES UNDER I PART III – R IGHTS INTERNATIONAL LAW
he Berne Convention
75
he (ome Convention
7"
&greement on rade-(elated &spects of !ntellect#al Property (ights
7+
he :!P; Copyright reaty
7+
he :!P; Performances and Phonograms reaty
79
he hree-Step est ' &n &nalysis
40
hree Step est vers#s )ception for <eaching P#rposes=
47
>N Convention on (ights of Persons 8ith isabilities
45
CONTENTS
Page No.
INTRODUCTION
4
PART I – COPYRIGHT PHILOSOPHY
Philosophy of Copyright and Balancing Stakeholders !nterests P#blic !nterest in Copyright$ !ndia
PART II - R IGHTS IGHTS OF PERSONS
" %%
INDIAN LAW WITH DISABILITIES UNDER I
&rticle %4 ' (ight to )*#ality
%+
&rticle %, ' (ight to Non-iscrimination
20
&rticle %9/%/a ' (ight to 1reedom of Speech and )pression
22
&rticle 2% ' (ight to 3ife and Personal 3iberty
2,
&rticle 2%& ' (ight to )d#cation
2+
he +5th Constit#tional &mendment
29
he (ight of Children to 1ree and Comp#lsory )d#cation &ct6 2009
7%
he Persons 8ith isabilities &ct6 %99,
7%
National Policy for Persons 8ith isabilities6 2005
72
he )leventh 1ive-ear Plan
74
IGHTS OF PERSONS WITH DISABILITIES UNDER I PART III – R IGHTS INTERNATIONAL LAW
he Berne Convention
75
he (ome Convention
7"
&greement on rade-(elated &spects of !ntellect#al Property (ights
7+
he :!P; Copyright reaty
7+
he :!P; Performances and Phonograms reaty
79
he hree-Step est ' &n &nalysis
40
hree Step est vers#s )ception for <eaching P#rposes=
47
>N Convention on (ights of Persons 8ith isabilities
45
PART IV – CASE STUDIES
:orking ?odels in Co#ntries
,2
:orking ?odels of Private !nitiatives
,,
PART V – CONSIDERATIONS FOR A AMENDMENT
54
CONCLUSION
5"
ANNEXURES
"0
LIST OF AUTHORITIES
"7
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he Constit#tion of !ndia g#arantees all its citi@ens f#ndamental rights to life6 to dignity6 to speech and epression6 to ed#cation and information. !t is estimated that !ndia has %00 million disabled persons% 8ho are #nable to f#lly eercise their f#ndamental rights g#aranteed by the Constit#tion as their access to printed material is almost 8holly restricted. S#ch disabled persons incl#de the vis#ally impaired6 persons 8ith dysleia and those s#ffering from paralysis among others6 all of 8hom are APersons 8ith Print !mpairment.2 Persons 8ith Print !mpairment can access printed material only 8hen it is converted into older formats6 s#ch as Braille or the ne8er and more fleible and mainstream formats like a#dio and electronic formats incl#ding .tt6 ?S :ord and pdf files. <ho#gh recent technological developments have made s#ch conversion possible6 there are6 among other barriers6 certain legal impediments that restrict their access to s#ch conversion or to the #se of s#ch converted 8orks. >nder the present legal regime6 the conversion and #se of the printed material in its converted form re*#ires the permission of the copyright holders that is6 more often than not6 c#mbersome and highly cost ineffective. C#rrently only five per cent of all the p#blished 8orks are prod#ced in accessible formats that vis#ally impaired and other print disabled p eople can read6 s#ch as large print6 Braille and a#dio.7 &lso kno8n as a
2
7
!ndia has approimately 75 million vis#ally impaired persons as per the :orld Blind >nion. http$888.8orldblind#nion.orgen. !ndia has approimately 50 million persons 8ith dysleia http$en.8ikipedia.org8ikiysleia!ncidence. !ndia has approimately 2.4 million persons 8ith cerebral palsy. http$en.8ikipedia.org8ikiCerebralDpalsy. Persons 8ith Print !mpairment refer to all persons 8ith any form of disability 8hatsoever6 8ho are #nable to access material in printed form as comfortably6 fleibly and conveniently as persons 8itho#t any disability. Persons 8ith isabilities is a broader term for persons 8ith any form of disability 8hatsoever6 8ho are #nable to access any material in its normal form /8hether in print or other8ise6 s#ch as6 cinematographic 8orks6 a#diovis#al 8orks6 etc. as comfortably6 fleibly and conveniently as persons 8itho#t any disability /for instance6 persons 8ith hearing impairment. &ll Persons 8ith Print !mpairment are necessarily Persons 8ith isabilities altho#gh the converse is not tr#e. <:orld Blind >nion general statement to :!P; 2009 Eeneral &ssembly= in http$888.keionline.orgnode527 /last visited November 206 2009.
4
Draft: For !"#$""!o% &$r&o"'" o%()
national borders. Fo8ever6 d#e to the national nat#re of copyright la86 they are #nable to do so. he :orld Blind >nion /:B> has recently proposed a treaty for the blind6 vis#ally impaired and other reading disabled6 8hich seeks to harmoni@e limitations and eceptions internationally to enable echange of kno8ledge and information in accessible formats for the print impaired persons at a global level. 4 !t is s#bmitted that the la8 governing copyright in !ndia in its present form hinders access by print impaired persons to 8orks in alternative accessible formats since it does not provide s#fficient eceptions to allo8 for conversion and distrib#tion of 8orks in accessible formats. !n broader terms6 the c#rrent copyright regime6 in fact6 hinders the process of dissemination of information rather than promote it. !n vie8 of the same6 this paper seeks to highlight the importance and the #rgency of making changes to the eisting legal regime by epanding the scope of eceptions and limitations to copyright #nder the !ndian Copyright &ct6 %9," /Copyright &ct6 to enable print impaired persons to access copyrighted 8orks in convenient accessible formats.
his paper arg#es that the need for a provision in !ndian copyright la8 for eceptions to ecl#sive rights of copyright holders6 for the benefit of print impaired persons arises o#t of the states obligation to grant them access to eercise their rights and to enable them to partake of their entitlements. !t is not merely a s#ggestion or a great idea to moot b#t the d#ty of the state and a step to8ards reparation of the inG#ry ca#sed to persons 8ith print impairment by denying them their rights and f#ndamental freedom g#aranteed to them #nder the Constit#tion of !ndia. here is more than one angle to be eamined in order to b#ttress a vie8 s#ch as the one stated above. Part ! of the paper eamines the history of copyright la8 in order to determine the obGective #nderpinning its eistence. he c#rrent frame of perception of intellect#al property la8 is thro#gh the frame of property rights 8hich grant greater rights to the a#thors of the 8ork. Part ! eamines the p#blic interest6 development of arts6 since6 f#t#re 8orks and access to kno8ledge obGectives #nderpinning the eistence of intellect#al property la8 regimes. !t *#estions the c#rrent legal regime reg#lating copyright in 8orks on the basis of the etent to 8hich it balances 4
<:orld Blind >nion general statement to :!P; 2009 http$888.keionline.orgnode527 /last visited November 206 2009.
Eeneral
&ssembly=
in
,
Draft: For !"#$""!o% &$r&o"'" o%()
the interests of all stakeholders /creators6 o8ners6 #sers and intermediaries in the process of its interpretation and enforcement. Part !! of the paper st#dies the rights for persons 8ith print impairment g#aranteed #nder the Constit#tion of !ndia. !t also eamines national la8s providing for people 8ith print impairment to b#ild #p a case for amending the Copyright &ct to incl#de eceptions to rights of copyright o8ners for the benefit of Persons 8ith Print !mpairment. Part !!! of the paper st#dies the vario#s international treaties and conventions setting global standards for copyright la8 8hich incorporate eceptions to ecl#sive rights for the benefit of print impaired persons. Part !H of the paper talks of the vario#s considerations to be kept in mind 8hile incorporating eceptions to copyright in the Copyright &ct.
5
Draft: For !"#$""!o% &$r&o"'" o%() PART I: PHILOSOPHY OF COPYRIGHT: BALANCING STA*EHOLDERS+ INTERESTS
1or several years p#blishers have arg#ed at length that copyright is a simple mechanism provided for protection of the a#thors rights. &#thors o8n the creations and therefore6 they m#st be free to control them. & one-sided vie8 s#ch as this totally neglects the interests of the #sers of those 8orks and copyright la8 is6 in fact6 interpreted to their detriment. !n light of this6 it is important to eamine the history and evol#tion of copyright la8 to determine if p#blic interest and development of arts and science also form the rationale of the system of copyright.
he system of copyright 8as born in )ngland at the time of introd#ction of the printing press arising o#t of concerns d#e to proliferation of 8orks 8hich 8as no8 possible beca#se of the printing press. &s book selling and p#blishing became a profitable vent#re the stationers /p#blishers so#ght to protect their trade and the copyright system 8as #sed by them to serve their needs and establish their monopoly. !n the process6 the a#thors /creators of the 8ork did not have their interests considered and they did not hold copyright. he Company of Stationers 8hich received its legitimacy from the Cro8n became enmeshed in politics and #ltimately so#ght to control the press leaving behind the initial obGective of controlling the book trade. he general sense 8as that the stationers had ab#sed their monopoly and th#s the book trade 8ent from being a closely reg#lated and monitored activity to one 8hich 8as open and free for all. he stationers petitioned against s#ch a move and o#t of s#ch petition6 the Stat#te of &nne 8as born in %"09. :hile it so#ght to restore order in the book trade6 its p#rpose 8as also to prevent the stationers from ab#sing their monopoly. h#s6 it allo8ed people other than stationers /the a#thors to hold copyright and they also limited the term of copyright of the stationers 8hich 8as hitherto perpet#al. he stationers 8ere obvio#sly #nhappy and circ#mvented the Stat#te of &nne by #sing the a#thors as intermediaries and arg#ed that a#thors had a nat#ral right of o8nership as part of the common la8.,
,
See Iohn )8ing6
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hen came the landmark r#ling of the Fo#se of 3ords in %""4 in the case of Donaldson v. Beckett 5 8hich gave a mied verdict as far the interest of the book sellers 8as concerned. :hile the Fo#se of 3ords did r#le that a#thors indeed had a common la8 copyright over their 8orks and th#s a perpet#al monopoly in their or their assignees favo#r /8hich the book sellers 8ere happy abo#t it also held that the common la8 copyright 8as s#perseded by the stat#tory right /laid do8n in the Stat#te of &nne and th#s6 the copyright 8as limited by the provisions of the stat#te. h#s6 by this time6 it 8as settled and the p#blic 8as firmly behind the idea that copyright 8as a stat#tory right and that perpet#al monopoly 8as not very desirable." ;nce the stat#tory rights epired6 the 8ork 8as available to all. he Copyright &ct6 %+42 so#ght to etend copyright protection beyond the old 2+ year period to last till the lifetime of the a#thors. h#s6 copyright slo8ly moved from being a p#blishers right to being an a#thors right. he %+42 &ct6 in fact6 clearly espo#sed the ca#se of p#blic interest element of copyright$
/)mphasis S#pplied
he evol#tion of modern copyright began to take shape and debates moved from monopoly and registration rights to the d#ration and nat#re of protection being granted by the copyright la8. !f the length of protection 8as greater6 it 8o#ld take longer to fall in the p#blic domain. h#s6 ideas of copyright la8 to balance the interests of the #sers and the a#thors began to take shape and moved a8ay from being solely concerned 8ith granting rights to p#blishers. he p#blic interest element of copyright gained significance as the foc#s shifted to8ards the interests of the #sers and the harm ca#sed to the p#blic by etending the rights in a 8ork for longer periods. + !t is opined that an eamination of copyright cases 8hich follo8ed the Stat#e of &nne indicates that many #ses of copyright 5 "
+
%""4 % )ng. (ep. +7". See ?ark (ose6 <he &#thor as Proprietor$ Donaldson v. Beckett and the Eenealogy of ?odern &#thorship=6 %9++ in Brad Sherman J &lain Stro8el /)ds.6 Of !thors and Origins " #ssays on $opyright %aw6 /%994$ ;ford >niversity Press6 p.27. See ?elissa e K8art6 <& Fistorical &nalysis of the Birth of 1air ealing and 1air >se$ 3essons for the igital &ge=6 200"6 &ntellect!al 'roperty (!arterly6 %6 50.
+
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material 8hich may be considered an infringement in the c#rrent scenario 8ere originally considered
he Stat#te of &nne and the concept of copyright in )nglish la8 formed the basis for the evol#tion of copyright la8 in the >nited States of &merica and m#ch later6 in !ndia. he Stat#te of &nne 8as #sed as a model for the 1ederal Copyright &ct of %"90 8hich began 8ith the opening 8ords from the Stat#te of &nne$ < n ct for the enco!ragement of learning.= he a#thority for the %"90 &ct 8as in the Constit#tion of the >nited States &rticle !6 Section +6 Cla#se +6 8hich stated that the idea 8as
their respecti)e writings.= he p#blic interestp#blic good element /learning is conspic#o#s. he system of copyright 8as not an arrangement solely to safeg#ard the interests of the p#blishers b#t 8as an arrangement to balance interests of all the parties involved in order to espo#se the greater ca#se of
S S#preme Co#rt held that the copyright of an a#thor in his 8ork s#bsisted only by virt#e of stat#te and not by virt#e of common la8.9
!n the later years copyright came to encompass a 8ide area of creative 8orks ' art6 performances6 m#sical recording6 video recording6 comp#ter programmes6 photographs6 etc. he system of copyright also got entangled in a comple mesh of international treaties and negotiations associated 8ith it6 cross-co#ntry movement of creative 8orks in ne8 formats 8ith the development of technology. h#s6 the goal of promoting scholarship6
9 %0
Wheaton v. 'eters /%+74 + Pet. ,9%. See Iohn )8ing6
9
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he c#rrent debate on 8hether copyright is abo#t a#thors rights or p#blic interest is6 in fact6 a *#estion abo#t balancing the interests of vario#s stakeholders of the copyright system. he system of copyright evolved to be a str#ct#re to control dissemination of creative 8orks in order to ens#re there is eno#gh incentive to create 8orks and p#blish. S#ch a res#lt 8orks for the benefit of a#thors6 p#blishers and the #sers alike. Fo8ever6 perpet#al or #nreasonably long periods of copyright and #nreasonably narro8 eceptions to copyright 8orks against p#blic good and #ltimately against the interest of the very obGective of copyright ' one of creation and dissemination of information.
Balancing the interests ho8ever6 does not provide #s concrete res#lts in terms of ens#ring p#blic interest6 e*#ity and s#pport for the back8ard. his is beca#se6 there is no shift in o#r frame of analysis of the iss#e at hand. he frame of analysis has al8ays been one of sec#ring the interests of the o8ners of copyright. !ntellect#al property rights6 8hen vie8ed from the perspective of creators rights alone res#lts in sit#ations demanding
%%
See generally &my Lapc@ynski6 <he &ccess to Lno8ledge ?obili@ation and the Ne8 Politics of !ntellect#al Property=6 200+6 %%" *ale %aw +o!rnal 6 204.
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!ndian copyright la8 8as given by )nglish la8 and th#s6 !ndia did not see debates on the philosophy of copyright as 8itnessed in )ngland and continental )#rope. he !ndian Copyright &ct of %9%4 8hich 8as simply an incorporation of the 8hole of the >nited Lingdom Copyright &ct of %9%% 8as repealed by the !ndian Copyright &ct6 %9," /the Copyright &ct.
)ntry 49 3ist ! of Sched#le H!! of the !ndian Constit#tion empo8ers the >nion to enact la8s relating to copyright6 patents and trademarks. Fo8ever6 neither the Constit#tion of !ndia nor the Copyright &ct is clear abo#t the p#rposeobGective of !ndian copyright la8. his vac##m can only be filled 8ith interpretations of the frame8ork of the !ndian Constit#tion and G#dicial prono#ncements. By virt#e of the common la8 system of !ndia6 la8 is made more by 8ay of G#dicial precedents than on 8ritten la8s. h#s6 a vac##m left by the Constit#tion is most readily filled by the la8 made by the G#diciary. &s seen in detail belo86 the G#diciary interpreted the eistent regime of intellect#al property rights la8 to be consistent 8ith p#blic interest and 8ith the p#blic policy obGectives of the State.
&n interpretation of the p#rpose and obGective of copyright la8 in !ndia 8as laid do8n6 perhaps for the first time6 by the elhi Figh Co#rt in %9+4 in the case of 'eng!in Books %imited v. &ndia Book Distrib!tors and Ors%2 8herein the co#rt held as follo8s$
<$opyright is a property right. hro!gho!t the world it is regarded as a form of property worthy of social protection in the !ltimate p!blic interest. he law starts from the premise that protection sho!ld be as long and as broad as possible and should provide only those exceptions and limitation which are essential in the public interest . he
co!rts adopt a -p!rposi)e approach to stat!tes=.
%2
&!( %9+, el 29.
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his decision has been s#bse*#ently follo8ed in later cases 8herein !ndian co#rts have read in the element of p#blic good or p#blic interest in the frame8ork of !ndian copyright la8.
Co#rts have also considered that if a partic#lar &ct has the effect of contrib#ting to p#blic interest p#blic good as a factor then to determine 8hether s#ch &ct fell fo#l of the Copyright &ct. he elhi Figh Co#rt case of he $hancellor Masters and Scholars of he /ni)ersity of Oxford v. 0arendra '!blishing 1o!se and Ors%7 did eactly that in ref#sing to deny permission for p#blication of g#ide books as s#ch denial
<$opyright law is premised on the promotion of creati)ity thro!gh s!fficient protection. On the other hand, )ario!s exemptions and doctrines in copyright law, whether stat!torily embedded or 2!dicially inno)ated, recogni3e the e4!ally compelling need to promote creati)e acti)ity and ens!re that the pri)ileges granted by copyright do not stifle dissemination of information. wo doctrines that co!ld be immediately be s!mmoned are the idea5expression dichotomy and the doctrine of 6fair !se6 or fair dealing. Public interest in the free flow of information is ensured thro!gh the idea5expression
dichotomy, which ens!res that no copyright is granted in ideas, facts or information. his creates a p!blic pool of information and idea from which e)eryone can draw.=
he co#rt specifically interpreted the doctrine of fair #se 8ithin copyright to be #sed to serve p#blic interest.
-789he doctrine of fair !se then, legitimi3es the reprod!ction of a copyrightable work. $o!pled with a limited copyright term, it g!arantees not only a p!blic pool of ideas and information, b!t also a )ibrant p!blic domain in expression, from which an indi)id!al %7
200+ /7+ PC 7+, /el.
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can draw as well as replenish. Fair !se pro)isions, then m!st be interpreted so as to strike a balance between the exclusive rights granted to the copyright holder, and the often competing interest of enriching the public domain .= M)mphasis s#pplied
¬her instance in 8hich the elhi Figh Co#rt6 in determining 8hether an &ct amo#nted to copyright infringement considered if s#ch &ct contrib#ted to p#blic interest 8as in Warner Brothers #ntertainment &nc. and Ors v. Santosh :.;.%4. !n this case6 the co#rt relied #pon the decision of the %9+4 Peng#in Books case /as disc#ssed earlier in interpreting !ndian copyright la8 as one essentially 8ith the p#rpose of contrib#ting to p#blic interest and stressed on the need to balance the interests of vario#s stakeholders in interpretation of copyright la8 8hile holding as follo8s$
<$opyright law, and the protections afforded to owners and those entitled to it, !nder Section <=, is a balance str!ck between the need to protect expression of an idea, in a gi)en form to promote creati)ity, on the one hand, and ens!re that s!ch protection does not stifle the ob2ecti)e, that is, creati)ity itself .=
(ecently6 the S#preme Co#rt6 in #ntertainment 0etwork >&ndia? %imited v. S!per $assette &nd!stries %imited 6%, #pon consideration of arg#ments #rging the co#rt to r#le on the imp#gned &ct on the basis of its contrib#tion to p#blic interest 8ithin the frame8ork of the Copyright &ct6 epressly held as follo8s$
<he protection of copyright, along with other intellect!al property rights, is considered as a form of property worthy of special protection beca!se it is seen as benefiting the society as a whole and stimulating further creative activity and competition in the public interest .= M)mphasis S#pplied
!nterpreting the rights of copyright o8ners to be analogo#s to rights of property o8ners /since the co#rt considered intellect#al property as a form of property6 the co#rt held that6 since right to property is no longer a f#ndamental right6 it may be s#bGect to %4 %,
?!P( 2009 /2 %",. 200+ /7" PC 7,7 /SC.
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reasonable restrictions and may be 8holly6 or in part6 ac*#ired in p#blic interest and on payment of reasonable compensation. he co#rt held6 in n o #ncertain terms that6 -when a right to property creates a monopoly to which p!blic m!st ha)e access, withholding the same from p!blic may amo!nt to !nfair trade practice.= !n contin#ation of s#ch a vie86 it f#rther held that <8&9n o!r constit!tional scheme of stat!te, monopoly is not enco!raged. @nowledge m!st be allowed to be disseminated. n artistic work if made p!blic sho!ld be made a)ailable s!b2ect of co!rse to reasonable terms and grant of reasonable compensation to the p!blic at large.=
his case has been relied #pon in the recent decision of the Bombay Figh Co#rt in M!sic $hoice &ndia 'ri)ate %imited v. 'honographic 'erformance %imited .%5
!n light of the brief eamination of case la8s clarifying the intent of the !ndian copyright la86 it can be inferred that the system of copyright in !ndia is not for commerciali@ation of 8orks b#t for achieving a balance of the interests of all stakeholders6 incl#ding p#blishers6 a#thors and #sers alike. ?ost importantly6 !ndian co#rts have laid stress on protecting p#blic interest and contrib#ting to p#blic good and enriching p#blic domain to enable dissemination of information. h#s6 an eception to the reprod#ction right of a copyright o8ner for the benefit of print impaired persons 8hich is #ndo#btedly in p#blic interest and in f#rtherance of the ca#se of dissemination of information to that large gro#p of persons 8hich 8o#ld other8ise have no access to the copyrighted 8ork in *#estion6 is 8ell 8ithin the bo#nds of the p#rposive frame8ork of the !ndian copyright la8. !n order to enforce the la8 governing copyright in a 8ay that serves p#blic interest and enriches p#blic domain by promoting and enabling access to and dissemination of information as r#led by the co#rts6 and to remove any ambig#ities that may eist in the la8 in this regard6 it is critical that the c#rrent copyright la8 be amended to provide for specific eceptions to copyright for the benefit of print impaired persons. !n fact6 it is the d#ty of the state to enable s#ch access failing 8hich6 the very obGective of the !ndian copyright system 8o#ld be defeated.
%5
2009 /%%% Bom 3( 509.
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he Copyright &ct allo8s reprod#ction of a copyrighted 8ork for
Certain amendments 8ere proposed to be made to the Copyright &ct in 2005. hese amendments6 it is s#bmitted6 are ins#fficient for the p#rpose of providing access to printed material for the benefit of persons 8ith print impairments of any nat#re /not restricted to vis#al impairment alone6 for instance. he proposed amendments do not incl#de the insertion of a specific amendment for the benefit of the print impaired. ;ne of the amendments proposed
makes it mandatory for a person seeking to make so#nd
recordings of copyrighted 8orks to pay royalty to the right holder for a minim#m of ,0000 copies. his severely restricts conversion of printed material into a so#nd recording /or a talking book or any a#dio format for the p#rpose of providing access to persons 8ith print impairments. !t makes the process c#mbersome and heavily tilted in the favo#r of copyright holders. !t re*#ires the license or consent of the right holder 8hich may not be given easily.
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!t 8as also proposed to insert a ne8 cla#se in the form of Section ,2/@a providing for
he proposed amendments seek to incl#de the concept of igital (ights ?anagement /(? into the Copyright &ct in the form of Sections 5,& and 5,B. (? is a term #sed for technologies that define and enforce parameters of access to digital media or soft8are. he reason for the deployment of s#ch meas#res is ' ostensibly ' to enforce the copyright of the man#fact#rer or the copyright-holder as the case maybe.
Fo8ever6 (? is extra5stat!tory. Conse*#ently6 rights that are conferred by the la8 are enforced by the copyright holder himself thro#gh technological meas#res so as to prevent access to s#ch digital media or soft8are 8hich 8o#ld infringe the copyright of the copyright holder. B#t6 more importantly6 this 8o#ld also mean that (? allo8s for copyright holders to restrict access to digital media or soft8are #nder terms 8hich 8o#ld be c!rrently permissible #nder copyright la8.
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1or eample6 if a person 8ished to make a copy of a legally p#rchased media file for personal #se or for back-#p6 #tilising the fleibility sanctioned #nder Section ,%/%/b/ii of the Copyright &ct6 heshe 8o#ld not be able to do so if the proposed amendments s#ggested here are enacted. !t co#ld also prevent private screening of digital media6 8hich 8o#ld /other8ise be perfectly legal to do #nder the c#rrent &ct. he incl#sion of this provision means that copyright holders 8ill be allo8ed to enforce their own copyright terms on digital media or soft8are that they prod#ceO terms that are not conc!rrent with the present $opyright ct . his 8o#ld also restrict the prod#ction of talking books or the #se of screen reading soft8are for the benefit of persons 8ith print impairment if the o8ner of a digital 8ork has prohibited s#ch #se of his 8ork. !n light of the stat#tory analysis of the copyright regime c#rrently in place in !ndia6 it is s#bmitted that the same is highly inade*#ate in its c#rrent form to ens#re that persons 8ith print impairment get access to 8orks in formats accessible by them. h#s6 an amendment to the c#rrent copyright la8 is of #tmost #rgenc y and importance.
%"
Draft: For !"#$""!o% &$r&o"'" o%() PART II: R IGHTS OF PERSONS WITH DISABILITIES
UNDER THE INDIAN CONSTITUTION
he Constit#tion of !ndia /Constit#tion epressly provides for the right to e*#ality /&rticle %46 right to non-discrimination /&rticle %,6 right to freedom of speech and epression /&rticle %9 and the right to life /&rticle 2%. !ndian co#rts have ro#tinely #pheld the rights of persons 8ith disability and the S#preme Co#rt of !ndia has specifically recogni@ed that the
Art!#(' /0 – R!.t to E1$a(!t)
&rticle %4 of the Constit#tion of !ndia g#arantees the right to e*#ality as a f#ndamental right for all its citi@ens. &rticle %4 provides that the State shall not deny to any person e*#ality before the la8 or the e*#al protection of the la8s 8ithin the territory of !ndia. his is similar to the concept of e*#ality enshrined in &rticle %" of the >niversal eclaration F#man (ights6 %94+6 8hich declares that all are e*#al before the la8 and are entitled to e*#al protection of la8s 8itho#t any discrimination.
he S#preme Co#rt has held in +agannath 'rasad v. State of /ttar 'radesh%" that
&!( %95% SC %24,.
%+
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stat#s. Since all people are not born e*#al and are infl#enced by differences in circ#mstances be it in terms of caste6 religion6 disability or social stat#s6 e*#al treatment of those 8ho are #ne*#ally placed res#lts in inG#stice. his position 8as taken by the S#preme Co#rt in $hiran2it %al v. /nion of &ndia%+ 8herein it 8as held that different classes or sections of people need to have differential treatment based on their varying needs. !f persons 8ith disabilities are #nable to enGoy their rights and the f#ndamental freedoms g#aranteed to them on par 8ith other persons by reason of their disability6 it is s#bmitted that it is the obligation of the State to provide them 8ith differential treatment in order that they are bro#ght to the same level as that of other citi@ens and are th#s able to enGoy their rights and freedoms on an e*#al basis. he Co#rt has held in ;a!ri Shankar v. /nion of &ndia%9 that &rticle %4 implies that e*#als sho#ld not be treated #nlike and #nlikes sho#ld not be treated alike. !f varying needs of classes re*#ire differential treatment6 it might lead to classification among gro#ps of persons. he S#preme Co#rt has held in sh!tosh ;!pta v. State of Aa2asthan20 that in order to apply the principle of e*#ality in a practical manner6 if the la8 is based on rational classification6 s#ch la8 8o#ld not be discriminatory /and th#s constit#tional. Eoing by this reasoning6 if a la8 is enacted 8hich treats persons 8ith disabilities on a differential basis from other persons in order that s#ch persons 8ith disabilities may be enabled to enGoy their g#aranteed rights and freedoms on an e*#al basis 8ith others6 s#ch la8 8ill not only be constit#tional b#t6 it is s#bmitted6 8ill be a re*#irement to be enacted by the State 8hich g#aranteed e*#al protection of la8s to all its citi@ens.
!t is important to note that the right to e*#ality has been declared by the S#preme Co#rt in @esha)ananda Bharati v. State of @erala2% and s#bse*#ently in several other cases follo8ing it incl#ding &ndra Sawhney v. /nion of &ndia >&&?622 to be part of the basic feat#re of the Constit#tion. he Preamble to the Constit#tion also highlights the principle of e*#ality to be one of the basic principles of the Constit#tion. h#s6 any constit#tional amendment violating the right to e*#ality 8o#ld be invalid. he Co#rt has reiterated this %+ %9 20 2% 22
&!( %9,% SC 4%. &!( %99, SC ,,. /2002 4 SCC 74. &!( %9"7 SC %45%. &!( 2000 SC 49+.
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principle in M.;. Badappana)ar v. State of @arnataka27 holding that any treatment of e*#als #ne*#ally or #ne*#als e*#ally 8ill be a violation of the basic str#ct#re of the Constit#tion. &rticle %4 does not merely constit#te a ban on creation of ine*#alities b#t also re*#ires the State to take affirmative action to eliminate eisting ine*#alities d#e to reasons of caste6 religion6 social and economic stat#s and even disability. !t is the obligation of the State /keeping also 8ith other commitments agreed to by the State in international covenants as 8ell as national la8s to grant e*#al protection by 8ay of affirmative action to8ards #ne*#als by providing additional facilities and opport#nities 8hich may not be provided for other persons. &ny affirmative action6 even 8hile it is discriminatory 8o#ld not be invalid if it is in aid of all persons attaining e*#ality. 1ail#re on part of the State to enact la8s 8hich provide for empo8erment of persons 8ith disabilities to enGoy their basic rights on e*#al terms 8ith other persons is6 in fact6 violative of &rticle %4 of the Constit#tion since s#ch fail#re amo#nts to discrimination of persons 8ith disabilities. he Copyright &ct6 by effectively disallo8ing persons 8ith print impairment from accessing 8orks in print in accessible formats6 does not provide #ne*#al treatment to #ne*#als. Fence6 it is violative of &rticle %4 of the Constit#tion and re*#ires to be amended accordingly.
Art!#(' /2 – R!.t to No%-D!"#r!3!%at!o%
&rticle %,/% of the Constit#tion g#arantees that the State shall not discriminate against any citi@en on gro#nds only of religion6 race6 caste6 se6 place of birth6 or any of them. Fo8ever6 &rticles %,/7 and %,/4 constit#te eceptions to the same 8hile providing for the State to create eceptions or special provisions in favo#r of 8omen6 children and for the advancement of any socially and ed#cationally back8ard classes of citi@ens. he right to e*#ality #nder &rticle %4 read 8ith the right to non-discrimination #nder &rticle %, and the provision for special meas#res in favo#r of the back8ard classes #nder &rticles %,/7 and %,/4 make o#t a strong case for provision of special meas#res in favo#r of persons 8ith disabilities in order that s#ch persons are not discriminated against and are able to enGoy e*#al protection of la8s in the co#ntry. 27
&!( 200% SC 250.
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he right to e*#ality on the gro#nds of disability are not eplicitly provided for in the Constit#tion. Fo8ever6 there have been significant strides taken to promote and realise e*#ality for disabled persons. ;n an international level6 !ndias ability to comply 8ith its obligations 8o#ld rest on interpretations of the Constit#tion that go beyond the literal tet and embrace the spirit and p#rpose of the constit#tion as 8ell as the gro8ing G#dicial consens#s in !ndia that the !ndian Constit#tion is s#bGect to teleological interpretations. !t 8as held for eample in the elhi Figh Co#rt case of 0a3 Fo!ndation v. ;o)ernment of 0$ and Ors24 that$
<89 constit!tional pro)ision m!st be constr!ed not in a narrow and constricted sense b!t in a wide and liberal manner so as to anticipate and take into acco!nt of changing conditions and p!rposes so that the constit!tional pro)isions does not get fossili3ed b!t remains flexible eno!gh to meet the newly emerging problems.=
)*#ality in regard to disabilities involves more than G#st an obligation to protect or promote the rights of disabled personsO it involves an obligation to f#lfill6 and to ens#re the disabled persons are placed on the same plane as non-disabled persons. he f#lfillment of the right to e*#ality therefore6 mandates the State to take positive steps to8ards this end.2, )*#ality is not a static concept and it evolves as the needs of the disadvantaged evolve.
!n a determination by the elhi Figh Co#rt that Section 7"" of the !ndian Penal Code6 %+5025 is #nconstit#tional d#e to a violation of the right to e*#ality6 it recognised that the legislation discriminated on gro#nds of se#al orientation6 epanding the right to e*#ality to take into acco#nt the history and p#rpose of the Constit#tion.
24
%50 /2009 3 2"". See ?.P. Iain6 &ndian $onstit!tional %aw, :adh8a and Co. /, th ed.$ 20076 p. %000-%00,. 25 Section 7"" of the !PC criminali@es se#al activity
2%
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& close parallel can be dra8n bet8een the incl#sive interpretation of se#al orientation as a gro#nd for non-discrimination in terms of the e*#ality cla#se and the similar incl#sion of discrimination as a gro#nd for non-discrimination. his incl#sion rests on a proper interpretation of the p#rpose of the cla#se and the obGectives so#ght to be achieved by non-discrimination and the policies related to affirmative action.
Both a teleological and p#rposive approach is adopted by the elhi Figh Co#rt in regard to the interpretation of the Constit#tion and in regard to the interpretation of the right to e*#ality. he Co#rts reasoning6 therefore6 as regards the e*#ality cla#se6 cannot be confined to the iss#e of se#al orientation alone b#t 8o#ld necessarily etend to any kind of discrimination 8hich is based on differential criteria. he v#lnerable and 8eaker sections of the pop#lation6 s#ch as disabled persons 8o#ld then fall in a category of persons 8ho are discriminated against based on differential criteria.
;n a n#mber of occasions the S#preme of Co#rt of !ndia has G#stified the introd#ction of special meas#res to g#arantee de facto e*#ality. )laborating on this principle6 the S#preme Co#rt in Dr. +agadish Saran and Ors v. /nion of &ndia2" has held that C? and <>=?, e4!ality is not degraded or neglected where special pro)isions are geared to the larger goal of the disabled getting o)er their disablement consistently with the general good and indi)id!al merit .=
Art!#(' /45/65a6 – R!.t to Fr''o3 of S&''#. a% E7&r'""!o%
)very citi@en of !ndia is g#aranteed the right to freedom of speech and epression #nder &rticle %9/%/a of the Constit#tion s#bGect to certain reasonable restrictions 8hich may be placed on it as detailed #nder &rticle %9/2. &ny restriction on the right to freedom of speech and epression 8hich goes beyond the frame8ork of &rticle %9/2 is invalid.2+ !t is important to note that a restriction on the freedom of speech of any citi@en may be placed as m#ch by an action of the State as by its inaction. h#s6 fail#re on the part of the State to g#arantee to all its citi@ens irrespective of their circ#mstances and the class to 2" 2+
/%9+0 2 SC( +7%. ?.P. Iain6 &ndian $onstit!tional %aw, /,th ed.6 2007$ :adh8a and Co.6 p. %%,7.
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8hich they belong6 the f#ndamental right to freedom of speech and epression 8o#ld constit#te a violation of &rticle %9/%/a.
he right to freedom of speech #nder &rticle %9/%/a incl#des the right to epress ones o8n vie8s and opinions on any iss#e thro#gh any medi#m /s#ch as by oral comm#nication6 printed material6 films6 so#nd recordings6 television broadcast6 photographs6 etc.. !t incl#des 8ithin its bo#nds6 the freedom of comm#nication and the right to p#blish opinion or propagate it.
he f#ndamental right to freedom of speech and epression is regarded as one of the most basic elements of a healthy democracy for it allo8s its citi@ens to participate f#lly and effectively in the social and political process of the co#ntry. !n fact6 the freedom of speech and epression gives greater scope and meaning to the citi@enship of a person etending the concept from the level of basic eistence to giving the person a political and social life. he S#preme Co#rt6 8hile emphasi@ing on the importance of the freedom of speech and epression in Maneka ;andhi v. /nion of &ndia629 has held as follo8s$
< &f democracy means go)ernment of the people by the people, it is ob)io!s that e)ery citi3en m!st be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general disc!ssion of p!blic matters is absol!tely essential.=
&s shall be seen belo86 this aspect of the right to freedom of speech and epression etending the concept of citi@enship to incl#de socio-political participation of a person is critical in the process of determining the scope of right to life of a citi@en #nder &rticle 2% of the Constit#tion.
!t is important to note that the scope of the
&!( %9"+ SC ,9".
27
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thro#gh any medi#m incl#ding print media6 a#dio6 television broadcast or electronic media.70 he G#diciary has time and again opined that the right to receive information is another facet of the right to freedom of speech and epression and the right to comm#nicate and receive information 8itho#t interference is a cr#cial aspect of this right. his is beca#se6 a person cannot form an informed opinion or make an informed choice and effectively participate socially6 politically or c#lt#rally 8itho#t receipt of ade*#ate information. he S#preme Co#rt in State of /ttar 'radesh v. Aa2 0arain7% has held that &rticle %9/%/a of the Constit#tion g#arantees the freedom of speech and epression to all citi@ens in addition to protecting the rights of the citi@ens to kno8 the right to receive information regarding matters of p#blic concern. his position 8as reiterated by the Co#rt in Secretary, Ministry of &nformation and Broadcasting, ;o)t. of &ndia v. $ricket ssociation of Bengal 72 8herein it 8as held that &rticle %9/%/a incl#des the right to ac*#ire and disseminate information. he S#preme Co#rt6 8hile opining on the right to freedom of information6 f#rther noted in Dinesh ri)edi, M.'. and Ors v. /nion of &ndia77 that
he print medi#m is a po8erf#l tool for dissemination and receipt of information for any citi@en. h#s6 access to printed material is cr#cial for satisfaction of a persons right to freedom of speech and epression g#aranteed to him #nder the Constit#tion. Persons 8ith print impairment have no access to printed material in their normal format. 1ail#re on part of the State to make legislative provision for enabling access to persons 8ith print impairment of material in alternative accessible formats 8o#ld constit#te a deprivation of their right to freedom of speech and epression and s#ch inaction on the part of the State falls fo#l of the Constit#tion. !n vie8 of the same6 it is an obligation on part of the State to ens#re that ade*#ate provisions are made in the la8 enabling persons 8ith print impairment to access printed material in accessible formats. 70 7% 72 77
See ?.P. Iain6 &ndian $onstit!tional %aw, :adh8a and Co. /, th ed.$ 20076 pp. %%,4-%%,". &!( %9", SC +5,. &!( %99, SC %275. /%99" 4 SCC 705.
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Art!#(' 8/ – R!.t to L!f' a% P'r"o%a( L!,'rt)
he Constit#tion of !ndia g#arantees to all its citi@ens the right to life and personal liberty #nder &rticle 2% 8hich reads as follo8s$
< 0o person shall be depri)ed of his life and personal liberty except according to proced!re established by law.=
!ndian co#rts interpreted the ambit of right to life very narro8ly for almost three decades spanning bet8een %9,0 and %9"" 8herein6 in the landmark r#ling of the S#preme Co#rt in .@. ;opalan v. State of Madras74 it 8as held that the right to life #nder &rticle 2% 8as m#t#ally ecl#sive of the f#ndamental freedoms g#aranteed #nder &rticle %9. his means that &rticle %9 8as not to apply to a la8 affecting personal liberty to 8hich &rticle 2% 8o#ld apply. !t 8as f#rther held in the .@. ;opalan case that a la8 affecting right to life and personal liberty co#ld not be declared #nconstit#tional on gro#nds of its fail#re to g#arantee nat#ral G#stice or d#e proced#re. h#s6 a la8 prescribing an #nfair and arbitrary proced#re co#ld deprive a citi@en of his right to life and personal liberty as long as s#ch la8 8as enacted by a valid legislat#re.
he S#preme Co#rt r#ling in Maneka ;andhi v. /nion of &ndia7, bro#ght abo#t a transformation in G#dicial attit#de to8ards right to life and personal liberty g#aranteed #nder the Constit#tion. I#dicial activism at its best ens#red that the scope of this most cr#cial right 8as etended to many areas not epressly laid do8n in the la8 and has6 in the process read in many more f#ndamental rights and has made it obligatory on part of the State to f#lfill on many aspects 8hich 8ere6 till then6 constit#ents of the irective Principles of State Policy. !t 8as held in the Maneka ;andhi case that &rticles %46 %9 and 2% of the Constit#tion 8ere not m#t#ally ecl#sive. h#s6 a la8 prescribing a proced#re for depriving a person of his personal liberty #nder &rticle 2% has to meet the re*#irements of &rticle %9. 1#rther6 the proced#re established by la8 #nder &rticle 2% 74 7,
&!( %9,0 SC 2". &!( %9"+ SC ,9".
2,
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m#st be in consonance 8ith &rticle %4 and m#st not be discriminatory or arbitrary and m#st be G#st6 fair and reasonable. !t 8as in this case that the terms
his trend of epansion of the ambit of the right to life 8as carried for8ard in s#bse*#ent cases. he S#preme Co#rt gave an epansive interpretation to the term
his vie8 of etending the ambit of the right to life #nder &rticle 2% to go beyond mere animal eistence /bios to incl#de political6 social and c#lt#ral participation /@oee 8as reiterated by the S#preme Co#rt in Olga ellis v. Bombay M!nicipal $orporation7" 8herein it held that the
;n more than one occasion thereafter6 the S#preme Co#rt emphasi@ed on the point that the right to life #nder &rticle 2% m#st g#arantee to every citi@en something beyond G#st the life of an animal to incl#de the needs of a h#man being incl#ding
&!( %9+% SC "45. &!( %9+5 SC %+0. Shantisagar B!ilders v. 0arayanan @himalal otame /%990 % SCC ,20. /%994 7 SCC 794.
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<he right to li)e with h!man dignity and the same does not connote contin!ed dr!dgery. &t takes within its fold some of the fine graces of ci)ili3ation which makes life worth li)ing and that the expanded concept of life wo!ld mean the tradition, c!lt!re and heritage of the person concerned.=
his vie8 has been f#rther follo8ed and endorsed by the S#preme Co#rt in $#A$ v. /nion of &ndia.40 ¬her broad form#lation of the theme of life 8ith dignity is fo#nd in the decision of the S#preme Co#rt in Bandh!a M!kti Morcha v. /nion of &ndia4% 8herein it 8as held that right to life #nder &rticle 2% incl#des
;ne of the most cr#cial aspects of the epansion of the ambit of the right to life #nder &rticle 2% of the Constit#tion is the provision for incl#sion of the social6 political and c#lt#ral life of the person. h#s6 the f#ndamental right to life g#aranteed to all persons #nder the Constit#tion incl#des the right to live 8ith h#man dignity and to participate f#lly in the social6 c#lt#ral and political processes of the co#ntry. his goes beyond the biological concept of life encompassing only the vegetative state of being alive. &s a res#lt of s#ch an epansion6 the right to read6 8rite and f#lly epress oneself becomes an integral part of the right to life #nder &rticle 2% beca#se these rights are integral to a persons active participation in the political6 social and c#lt#ral processes of the co#ntry 40 4%
&!( %99, SC 922. &!( %9+4 SC +02.
2"
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or of his comm#nities. &ccess to printed material is one of the most f#ndamental aspects of the right to read6 8rite and epress oneself in order to form an informed opinion or make an informed choice in ones political6 c#lt#ral or social life. :hen persons 8ith print impairment are denied s#ch access to printed material in alternative formats6 their f#ndamental right to life /and the f#ndamental right to freedom of speech and epression #nder &rticle %9 as disc#ssed above g#aranteed to them #nder the Constit#tion is taken a8ay from them since s#ch denial of access 8ill prevent their participation in the po litical and social aspects of their lives. h#s6 it becomes an obligation on the part of the State to ens#re that their f#ndamental rights are granted to them on an e*#al basis 8ith other persons by doing a8ay 8ith any gap 8hich may eist in the la8 8hich prevents persons 8ith print impairment from accessing information in print format. S#ch action on the part of the State is not only 8ithin the frame8ork of the Constit#tion b#t is also an obligation on its part to be f#lfilled.
R!.t to E$#at!o%
& nat#ral etension of the arg#ment for the epansion of the scope of right to life to incl#de a right to a political6 social and c#lt#ral life and to a life of h#man dignity 8o#ld lead to the incl#sion of the right to ed#cation 8ithin the ambit of the right to life #nder &rticle 2%. By introd#cing a *#alitative concept into the right to life #nder &rticle 2%6 the S#preme Co#rt has made 8ay for any aspect 8hich promotes the *#ality of life to fall 8ithin the parameters of &rticle 2%. &s a res#lt6 many irective Principles of State Policy 8hich 8ere hitherto not enforceable have become enforceable #nder &rticle 2%. 1#rther6 the S#preme Co#rt has also implied a n#mber of f#ndamental rights from &rticle 2% even tho#gh these rights have not been epressly provided for #nder the Constit#tion.
he S#preme Co#rt has implied the right to ed#cation as a f#ndamental right as part of the right to life #nder &rticle 2%. !t is s#bmitted that the 8ord
2+
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in Mohini +ain v. State of @arnataka42 that the right to ed#cation flo8s directly from the right to life and that the right to ed#cation 8as concomitant to the f#ndamental rights. )ven 8hile admitting that the Constit#tion did not epressly g#arantee right to ed#cation as a f#ndamental right6 the Co#rt read &rticle 2% c#m#latively 8ith the irective Principles of State Policy 8ith respect to the State providing ed#cation6 as enshrined in &rticles 7+6 79/a6 4% and 4, and opined that
)ven 8hile s#ch a broad obligation 8ith respect to providing ed#cation6 placed on part of the State in Mohini +ain 8as considerably toned do8n in /nni @rishnan v. State of ndhra 'radesh647 the Co#rt reiterated the proposition that the right to ed#cation is implicit in6 and flo8s from the right to life #nder &rticle 2%. Fo8ever6 it 8as *#alified by stating that s#ch a right to ed#cation 8as not absol#te and 8o#ld be g#ided by the irective Principles of State Policy contained in &rticles 4%6 4, and 45 of the Constit#tion. he Co#rt held that every citi@en has a right to free ed#cation and the State has an obligation to provide the same to the citi@ens till they attain %4 years of age. !n vie8 of the same6 the right to ed#cation is the f#ndamental right of every citi@en till heshe attains %4 years of age.
T.' 9t. Co%"t!t$t!o%a( A3'%3'%t
he States obligation to provide free and comp#lsory ed#cation to children belo8 the age of %4 years 8hich 8as hitherto a G#dicial la8 became a stat#tory one 8hen the Constit#tion /)ighty Sith &mendment &ct6 2002 8as passed by the Parliament of !ndia 8hereby &rticle 2%& 8as inserted into the Constit#tion of !ndia. &rticle 2%& provides that <89he State shall pro)ide free and comp!lsory ed!cation to all children of the age of six to fo!rteen years in s!ch manner as the State may, by law, determine.=
he +5th amendment f#rther inserted &rticle ,%&/k making it a f#ndamental d#ty on part of a < parent or g!ardian to pro)ide opport!nities for ed!cation to his child or, as the 42 47
&!( %992 SC %+,+. &!( %997 SC 2%"+.
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case may be, ward between the age of six and fo!rteen years.= )ven 8hile f#ndamental d#ties in the Constit#tion are not in the nat#re of p#blic d#ties and are th#s #nenforceable in a co#rt of la8 by 8ay of a 8rit of mandam!s or other8ise6 they are g#iding principles and are directory in nat#re and can be promoted by constit#tional means. h#s6 &rticle ,%& can be #sed to interpret ambig#o#s stat#tes as 8as held by the S#preme Co#rt on vario#s occasions.44
h#s6 the right to free and comp#lsory ed#cation is the f#ndamental right of every child bet8een si and fo#rteen years of age as g#aranteed #nder the Constit#tion. !t is f#rther6 the f#ndamental d#ty of every parent or g#ardian to provide opport#nities for ed#cation of their child or 8ard bet8een si and fo#rteen years of age.
Persons 8ith print impairment 8ho are not provided access to printed material in alternate formats are #nable to enGoy their f#ndamental right to ed#cation and this #ltimately constit#tes deprivation of their right to life by the State. h#s6 the State m#st ens#re that any legislative or other barrier preventing access to printed material of persons 8ith print impairment is removed in keeping 8ith its obligation to enable its citi@ens to enGoy their f#ndamental rights and freedoms incl#ding the right to ed#cation and the right to life g#aranteed to them #nder the Constit#tion. Considering that it is the f#ndamental d#ty of every parent or g#ardian to ens#re that opport#nities for ed#cation are provided to their child or 8ard6 it is important to ens#re that parents or g#ardians of children too are allo8ed access to printed material in accessible format for the p#rpose of providing access of the same to their child or 8ard.
T.' R!.t of C.!(r'% to Fr'' a% Co3&$("or) E$#at!o% A#t; 8<<4
he Parliament recently enacted the (ight of Children to 1ree and Comp#lsory )d#cation &ct6 2009 /)d#cation &ct for the p#rpose of providing free and comp#lsory ed#cation to children bet8een the age of si and fo#rteen years. :ith the enactment of this la86 the 44
M!mbai @amgar Sabha v. bd!lbhai &!( %9"5 SC %4,,O 1ead Masters v. /nion of &ndia &!( %9+7 Cal 44+O Dasarathi v. State of ndhra 'radesh &!( %9+, &P %75O Mohan v. /nion of &ndia /%992 S#pp % SCC ,94.
70
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State has given effect to the f#ndamental right of the children to obtain free and comp#lsory ed#cation from the State as enshrined in &rticle 2%& of the Constit#tion.
Section 7 of the )d#cation &ct provides that every child bet8een the ages of si years and fo#rteen years has the right to free and comp#lsory ed#cation in a neighbo#rhood school till the completion of elementary ed#cation. Proviso to Section 7/2 provides that children 8ith disability as defined #nder the Persons 8ith isabilities /)*#al ;pport#nities6 Protection and 1#ll Participation &ct6 %995 shall have the right to p#rs#e free and comp#lsory ed#cation in accordance 8ith Chapter H of the said &ct. Chapter H of the said &ct is dealt 8ith in detail belo8.
T.' P'r"o%" =!t. D!"a,!(!t!'" A#t; /442
he Persons 8ith isabilities /)*#al ;pport#nities6 Protection of (ights and 1#ll Participation &ct /&ct 8as passed by the >nion Parliament in %99, and this marked foc#s on the need for eliminating all barriers to f#ll participation of disabled persons in the society. he &ct incorporates provisions for non-discrimination and affirmative action apart from 8eaving these principles along 8ith the mandate to provide e*#al opport#nities in ed#cation and employment to disabled persons. Chapter H of the &ct 8hich deals 8ith ed#cation lays do8n that every child belo8 %+ years of age be provided 8ith free ed#cation in an appropriate environment. Section 2" of the &ct re*#ires the Eovernment to provide disabled children6 free access to special books and e*#ipments needed for his ed#cation. Needless to mention6
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development of assistive devices #nder Section 4+ of the &ct. h#s6 the la8 re*#ires the gEovernment to not only provide materials in accessible formats to the print impaired b#t also actively assist in development of technology for conversion of materials into accessible formats. his is6 in fact6 consistent 8ith the larger mandate of the &ct to provide a life of dignity6 a healthy standard of living6 assistive facilities and an enabling environment to disabled persons as a matter of right and as a matter of ens#ring availability of e*#al opport#nities to them. !t m#st be noted that6 even 8hile the &ct calls for dismantling
Nat!o%a( Po(!#) for P'r"o%" =!t. D!"a,!(!t!'"; 8<<
&part from legislations and constit#tional provisions6 a st#dy of the national policy doc#ments demonstrates the vision and commitment of the !ndian Eovernment in g#aranteeing a life of dignity and freedom to disabled persons in !ndia at par 8ith other citi@ens. he National Policy for Persons 8ith isabilities /Policy form#lated by the ?inistry of Social I#stice and )mpo8erment in 2005 lays do8n the commitment of the Eovernment in providing disabled persons6 access to ed#cation and to a barrier-free environment for their development. he Policy recogni@es that ed#cation is the most effective vehicle of social and economic empo8erment. !n vie8 of the right to ed#cation as a f#ndamental right g#aranteed to all persons #nder the Constit#tion and in consideration of the Eovernments obligations #nder Section 25 of the Persons 8ith isabilities &ct6 %99,6 Chapter !!B of the Policy envisages the Eovernment providing the nder Chapter !H of the Policy dealing 8ith ed#cation of persons 8ith disabilities6 the
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Eovernment has ass#red that
he Policy talks of creation of a barrier-free environment for persons 8ith disabilities for the achievement of 8hich6 several strategies 8o#ld be adopted incl#ding meeting comm#nication needs of persons 8ith disabilities by making information service and p#blic doc#ments accessible to them. 1or this p#rpose6 the Policy epressly provides for #se of < Braille, tape5ser)ice, large print and other appropriate technologies.= !t is s#bmitted that s#ch a commitment 8o#ld imply that the Eovernment 8o#ld strive to provide for technologies incl#ding digital or other technology re*#ired to convert printed material in formats accessible to print impaired persons. !n order for the Eovernment to effectively bring s#ch an intention to action6 it is important that s#ch conversion #sing technology is not prohibited by the copyright regime. 1#rther6 it is also important to ens#re that the same technology is not #sed to restrict the access and conversion of the copyrighted material in the first place.
he Policy has also considered the contrib#tion on non-governmental organi@ations to the ca#se of print impaired persons. S#ch official recognition of their 8ork provides great s#pport to their activities and also makes o#t a strong case to accommodate and facilitate the 8ork of NE;s 8ithin the legal frame8ork. !n light of the same6 it is interesting to note that Chapter H!!! of the Policy recogni@es the NE; sector as an important instit#tional mechanism to provide affordable services complementing the efforts of the Eovernment 8ith regard to accessibility iss#es concerning disabled persons. !t has been epressly mentioned in the Policy that echange of information amongst NE;s 8o#ld be enco#raged and facilitated. his is a h#ge boost for efforts of several NE;s striving to provide access to print impaired persons of copyrighted material in accessible formats.
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Provision for echange of information amongst NE;s 8o#ld h#gely help c#t costs of distrib#tion and reprod#ction of material in accessible format. he costs of s#ch access 8itho#t a mechanism for echange bet8een vario#s instit#tions are #s#ally so h#ge that they precl#de any effort to make copies of 8orks in accessible formats. Fo8ever6 a provision for s#ch a mechanism for sharing 8ork is of little or no #se if there are legislative barriers making the very act of prod#cing the material illegal. h#s6 an amendment of !ndian copyright la8 to provide for access to print impaired persons of copyrighted material is of #tmost necessity to enable the policy obGectives of the Eovernment in providing for access by disabled persons to f#ndamental freedom6 ed#cation and information.
T.' E('>'%t. F!>'-Y'ar P(a%
Consistent 8ith the obGectives of the Policy and the approach of the Convention6 the )leventh 1ive-ear Plan /Plan form#lated by the Eovernment provides for a right-based approach for disabled persons marking a shift in national policy from a 8elfare-based approach. Provision for accessibility is one of the eight basic principles on basis of 8hich Chapter 5 /Social I#stice is form#lated. he Plan recogni@es that there is an <#rgent need= to revie8 all legislations pertaining to disability and to amend them to make them consistent 8ith the Convention. his is a 8elcome provision and it is s#bmitted that it a#tomatically makes 8ay for amendment of the !ndian Copyright &ct 8hich is6 in its c#rrent form6 directly restricting the access of print impaired persons to materials in accessible format. he Plan also s#ggests that interventions by the Eovernment in the area of providing accessibility to disabled persons 8o#ld incl#de provision of access to information to s#ch persons in all its forms. he Plan specifically ens#res
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the ho#r b#t also an obligation on part of the Eovernment to amend the !ndian Copyright &ct to provide for conversion of copyrighted material into formats accessible by print impaired persons.
7,
Draft: For !"#$""!o% &$r&o"'" o%() PART III: PROVISION
IN INTERNATIONAL LAW R ELEVANT TO EXCEPTIONS FOR PRINT IMPAIRED
PERSONS
his section briefly highlights 8hat the position might be for each of the relevant pieces of international la8 governing global standards of copyright protection and the impact their provisions may have on the scope of eceptions for the benefit of print impaired persons in national legislations. he international treaties reg#lating copyright la8 globally seek to establish minim#m standards of protection to be follo8ed by all member states. he three-step test incorporated in &rticle 9 of the Berne Convention finds place in many other international treaties as can be seen belo8. hese provisions have great implications for the rights of the print impaired and6 8hen read 8ith provisions of the >nited Nations Convention for the (ights of Persons 8ith isabilities />NC(P and national la8s providing for disabled persons6 make o#t a case for introd#cing an eception in !ndian copyright la8 for the benefit of print impaired persons. his section seeks to highlight the provisions in international treaties relating to eceptions to copyright directly impacting access /reprod#ction to the 8ork /as opposed to distrib#tion6 adaptation6 import6 eport6 etc.
T.' B'r%' Co%>'%t!o% for t.' Prot'#t!o% of L!t'rar) a% Art!"t!# Wor?"; /99 5T.' B'r%' Co%>'%t!o%6
he Berne Convention governs protection for every prod#ction in the literary6 scientific and artistic domain incl#ding all forms of so#nd and vis#al recordings6 dramatic 8orks6 m#sical compositions6 cinematographic 8orks6 dra8ings and photographs.
&rticle 9/2 of the Berne Convention provides for an eception to the reprod#ction right of the copyright holder 8hile providing a minim#m standard for s#ch eceptions in national legislations. !t provides that <8&9t shall be a matter for legislation in the co!ntries of the /nion to permit the reprod!ction of s!ch works in certain special cases, pro)ided that s!ch reprod!ction does not conflict with a normal exploitation of the work and does not !nreasonably pre2!dice the legitimate interests of the a!thor .= his forms
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8hat is kno8n as the three-step test for national legislations to adhere to6 8hile providing eceptions to the rights of the copyright holders. he eception6 in order to be valid m#st /a /a appl apply y to repr reprod od#ct #ctio ion n of 8ork 8orkss in cert certai ain n speci special al cases cases66 /b /b be s#ch s#ch that that the the reprod reprod#ct #ction ion does does not conflict conflict 8ith 8ith a normal normal eploitat eploitation ion of the 8ork6 and /c not #nreasonably preG#dice the legitimate interests of the a#thor. &ll other eceptions to the ecl#si ecl#sive ve right rightss recogni recogni@ed @ed in the Berne Berne Convent Convention ion m#st m#st pass pass this this test. test. his his is in addition to satisfying the specific re*#irements contained in the Berne Convention itself. he three steps are c#m#lative and a fail#re to comply 8ith any one of them 8o#ld precl#de the eception from being consistent 8ith the Berne Convention. !t is important to note that the three-step test has also been adopted as the minim#m standard in many other international treaties as is seen belo8.
T.' I%t'r%at I%t'r%at!o%a !o%a(( Co%>'%t! Co%>'%t!o% o% for t.' Prot'#t Prot'#t!o% !o% of P'rfor3 P'rfor3'r" 'r";; Pro$#' Pro$#'r" r" of P.o%ora3" a% Broa#a"t!% Ora%!@at!o%"; /4/ 5T.' Ro3' Co%>'%t!o%6
he (ome (ome Convent Convention ion governs governs protec protectio tion n for perfor performan mances ces given given by perfor performer mers6 s6 phonograms and broadcasts.
!n respect of the print impaired6 this 8o#ld have an
implication for sharing 8orks in accessible format 8hich co#ld be in the form of an a#dio recording or a video broadcast. &rticle %,/2 of the (ome Convention permits eceptions
7"
Draft: For !"#$""!o% &$r&o"'" o%() T.' Ar''3 Ar''3'%t '%t o% Tra'-R Tra'-R'(at '(at' ' A"&'#t" A"&'#t" of I%t'((' I%t'(('#t$a #t$a(( Pro&'rt Pro&'rt) ) R!.t"; R!.t"; /440 5TRIPS6
(!PS (!PS governs governs protecti protection on for literary literary and artist artistic ic 8orks 8orks as covere covered d by the Berne Conve Convent ntio ion6 n6 comp comp#t #ter er progr program ams6 s6 comp compil ilat atio ions ns of data data66 perf perfor orma mance ncess give given n by performers6 phonograms and broadcasts. he rights and eceptions to the rights #nder the (!PS for literary and artistic 8orks is the same as that #nder the Berne Convention. his is clear from &rticle 9 of (!PS 8hich re*#ires its members to comply co mply 8ith &rticles % to 2% of the Berne Convention. his f#rther implies that &rticle 9 of the Berne Convention providing for the three-step test is also mandated to be complied 8ith by (!PS. 1#rther6 &rticle %7 of (!PS incorporates a slightly modified version of the test to f#rthe f#rtherr limit limit the scope scope of ecept eception ionss to ecl#si ecl#sive ve rights rights /copyr /copyright ight. . &rticl &rticlee %7 modifies the third step by mandating that the eception sho#ld not #nreasonably conflict 8ith the legitimate interests of the right holder /and not the a#thor as is provided #nder the Berne Convention. &ll right holders need not be a#thors. 1or instance6 p#blishers hold rights over the 8ork altho#gh they may not be creators of the same. 1#rther6 right holders 8ho are not a#thors do not o8n moral rights to the 8ork. h#s6 &rticle %7 act#a act#all lly y limi limits ts the the scop scopee of ecep ecepti tion onss to be prov provid ided ed to ecl# ecl#si sive ve right rights. s. hes hesee eceptions may be those provided for the rights incorporated #nder the (!PS and also those incorporated by the re*#irement to comply 8ith the Berne Convention provision #nder #nder (!PS. (!PS. 1#rthe 1#rther6 r6 &rticl &rticlee %4/5 %4/5 of (!PS (!PS relati relating ng to right rightss in perfor performan mances ces66 phonograms and broadcasts restrict the scope of eceptions to these rights to the etent permitted by the (ome Convention. h#s6 it is s#bmitted that an eception for the benefit of print impaired persons in respect of any area protected by (!PS 8o#ld need to pass a higher standard than that set by the Berne Convention.
T.' WIPO Co&)r!.t Tr'at) of /44 5T.' WCT6
he :C governs protection for literary and artistic 8orks as defined in the Berne Convention incl#ding comp#ter programmes and databases. he rights and eceptions to the rights #nder the :C for literary and artistic 8orks is the same as that #nder the
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Berne Berne Convent Convention ion.. his his is clear clear from from &rticl &rticlee %/4 %/4 of the :C 8hich 8hich re*#ir re*#ires es its members to comply 8ith &rticles % to 2% of the Berne Convention. &rticle %0 of the :C provides separately for limitations and eceptions to ecl#sive rights 8hich incl#de rights covered and not covered by the Berne Convention. h#s6 the :C basically retain retainss the three-s three-step tep test test #nder #nder the Berne Berne Convent Convention ion for admitt admitting ing ecepti eceptions ons to ecl#sive rights granted #nder it. 1#rther6 the agreed statement concerning &rticle %/4 of the :C etends eceptions to the reprod#ction right permitted #nder &rticle 9 of the Berne Convention to the digital environment as 8ell. his 8ill have implications on providing for eceptions to ecl#sive rights 8ith respect to digitally accessible formats of 8orks for persons 8ith print impairment.
T.' WIPO P'rfor3a%#'" a% P.o%ora3" Tr'at) of /44 5T.' WPPT6
he :PP governs protection for performers and prod#cers of phonograms. !t is f#lly consistent 8ith the provisions of the (ome Convention even tho#gh it does not re*#ire adoption of any of the provisions of the (ome Convention. &rticle %5/% of the :PP mandates its parties to provide for the same kind of eceptions to protect performers and prod#cers of phonograms as is provided by them for protection of copyright in literary and artist artistic ic 8orks 8orks 8hich 8hich is simila similarr to the provision provision in the (ome (ome Convent Convention ion.. his his essentially boils do8n to the three-step test provided in the Berne Convention. &rticles " and %% of the &PP limit the eceptions to the rights of the performers and prod#cers of phonograms respectively to the etent permitted by the three-step test. !n vie8 of the statements made in the diplomatic conference of the :C in %9956 it is clear that the reprod#ction rights and eceptions to the same apply to the digital environment as 8ell and that that the the agre agreed ed stat statem emen entt appl applyi ying ng to &rti &rticl clee %0 of the the :C :C appl applie iess m!tatis m!tandis to m!tandis to &rticle %5 of the :PP.
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!t is clear from the disc#ssion above that as long as there is no national legislation on the iss#e and no inconsistency 8ith the same6 the provisions of the Convention along 8ith those of the vario#s international treaties !ndia has ratified6 incl#ding the Berne Convention6 constit#te la8 in !ndia. h#s6 any eception to ecl#sive rights #nder !ndian copyright la8 m#st be meas#red against the to#chstone of the three-step test. 1#rther6 in light of the fact that many international treaties governing global standards in copyright la8 re*#ire national legislations to adhere to the three-step test #nder the Berne Convention6 it becomes important to st#dy the test in detail. !n order that an eception to the reprod#ction right of a copyright holder in a national legislation is permitted6 it m#st adhere to certain minim#m standards as laid do8n in &rticle 9 of the Berne Convention 8hich constit#tes the three-step test. his test mandates that the said eception /% permits reprod#ction of the copyrighted 8ork in certain special cases6 /2 is s#ch that s#ch reprod#ction does not conflict 8ith a normal eploitation of the 8ork6 and /7 does not #nreasonably preG#dice the legitimate interests of the a#thor. he precise meaning6 scope and application of the three-step test in respect of the Berne Convention as 8ell as other international treaties is in disp#te and is not settled.4, & :; isp#te (esol#tion Panel dealt 8ith the interpretation of the three-step test in &rticle %7 of (!PS /8hich is only a slightly modified form of the test in the Berne Convention and is not in conflict 8ith the same in respect of a disp#te in 2000 bet8een the )#ropean >nion and the >nited States of &merica over an eception to copyright #nder the >S la8.45 he decision of the Panel has been critici@ed on the gro#nd that it makes it diffic#lt for fair #se provisions to pass the test. 4" here have also been concerns of the s#itability of the test in its c#rrent form in the digital age.
4,
Christophe Eeiger et al 6 <o8ards a Balanced !nterpretation of the hree-Step est in Copyright 3a8=6 200+6 706 #!ropean &ntellect!al 'roperty Ae)iew6 %26 p. 4"9. 45 (eport of the :; Panel dated I#ne %,6 20006 :S%50(. 4" obias Schon8etter6 <he hree-Step est 8ithin the Copyright System= available at http$pcf4.dec.#8i.ed#vie8paper.phpQidR,+JprintR% /last visited on November 206 2009.
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he :; Panel opined that the first step re*#ires that an eception to national legislation sho#ld be clearly defined and narro8 in its scope and reach. 1#rther6 it 8as opined that the eception need not be G#stified by a clear reason on the lines of p#blic policy. &n eception for the benefit of print impaired persons in the !ndian Copyright &ct6 it is s#bmitted6 can be clearly defined in terms of its scope and reach. he eception is for the benefit of persons 8ho are #nable to access printed material in their normal form by one or more reasons of a form of disability. he criterion is obGective and clearly defined. 1#rther6 even tho#gh it is not mandated by the first step6 an eception for the benefit of print impaired persons is absol#tely in line 8ith p#blic policy considerations as disc#ssed earlier.
Step !: “"o conflict with normal exploitation of the work
he :; Panel opined that every #se of 8ork 8hich is6 in principle6 covered by the scope of ecl#sive rights and conflicts 8ith commercial gains need not necessarily conflict 8ith a normal eploitation of that 8ork. ;ther8ise6 the Panel f#rther held6 no eception 8o#ld ever pass the second step since a copyright is6 by nat#re6 an ecl#sive right and is mostly associated 8ith commercial gains. h#s6 normal eploitation cannot be e*#ated 8ith a f#ll #se of ecl#sive rights. he Panel opined that the second step only restricts those activities 8hich ca#se significant or tangible c ommercial losses in act#al or potential markets. !t is s#bmitted that in case of reprod#ction of copyrighted 8orks in formats accessible by print impaired persons6 the end beneficiary is a person 8ho can other8ise not access the 8ork in its normal form. h#s6 s#ch person never formed part of the act#al or potential market of the 8ork /in its normal form in the first place. Fence6 there is no *#estion of any losses in respect of the same. !n the event6 a s#itable nominal rem#neration mechanism is 8orked o#t bet8een the print impaired persons and the copyright holders6 it only epands the market of the 8ork since it can no8 cater to those persons 8ho did not other8ise form part of the market.
Step #: “"ot unreasonably pre$udice the interest of the right holder
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:hile the Berne Convention and the :C #se the 8ord
!n light of the same6 it is interesting to note that over ,0 co#ntries 8orld8ide have provided eceptions for the benefit of the
See I#dith S#llivan6
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of the )#ropean >nion Copyright irective provides for eceptions to the reprod#ction right6 and the right of comm#nication to the p#blic for 8orks and the right of making available to the p#blic for other s#bGect matter6 for
&s stated earlier6 the Panels decision has been critici@ed on the gro#nds that it makes it more diffic#lt for provisions of fair #se to pass the test. !n fact there are several debates to modify the three-step test to enable it to provide a greater scope for eceptions to be incorporated in national legislations. !n light of the fact that an eception to reprod#ction of a copyrighted 8ork for the benefit of print impaired persons passes the three-step in its c#rrent form6 it is disheartening to see that even the test in its c#rrent form is not f#lly given credence to and the m#ch needed eception to reprod#ction rights 8hich6 it is s#bmitted6 print impaired persons are entitled to6 is not provided for in !ndian copyright la8. T.r'' St'& T'"t >'r"$" E7#'&t!o% for T'a#.!% P$r&o"'"
&s already noted above6 the Berne Convention allo8s signatories to create eceptions to the rights of copyright holders if s#ch eceptions meet the standard laid do8n by the three-step test as contained in &rticle 9/7. his standard has been incorporated by other international instr#ments governing intellect#al property rights incl#ding (!PS /&rticle %7 and the :!P; Copyright reaty /&rticle %0. Fo8ever6 &rticle %0/2 of the Berne Convention also provides for signatories to create #ncompensated eceptions and limitations for #se of copyrighted 8orks for ill#stration in p#blications6 broadcasts and so#nd recordings for teaching p#rposes. hese eceptions are available to signatories of the (!PS &greement6 8hich incorporates the provisions of the Berne Convention. here is no provision in the international copyright regime to provide for eceptions facilitating 49
&bid.
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ed#cation or specific provisions reaching o#t to the establishment of libraries or archives or specific provisions for #se of copyrighted 8orks by persons 8ith disabilities. !n light of an absence of s#ch a provision6 &rticle %0/2 of the Berne Convention providing for eceptions for
&rticle %0/2 lays do8n that -8i9t shall be a matter for legislation in the co!ntries of the /nion, and for special agreements existing or to be concl!ded between them, to permit the !tili3ation, to the extent 2!stified by the p!rpose, of literary or artistic works by way of ill!stration in p!blications, broadcasts or so!nd or )is!al recordings for teaching, pro)ided that s!ch !tili3ation is compatible with fair practice.=
:hile the three-step test mandates eceptions to be introd#ced in #'rta!% "&'#!a( #a"'" 8hich do not #o%f(!#t =!t. t.' %or3a( '7&(o!tat!o% of t.' =or? and do not $%r'a"o%a,() &r'$!#' t.' !%t'r'"t" of t.' r!.t .o('r 6 eceptions for teaching
p#rposes #nder &rticle %0/2 can allo8 for <$t(!"at!o% = of the 8ork /as opposed to
he *#estion 8hich has been debated in this regard is 8hether &rticle %0/2 is in any 8ay affected by the three-step test in &rticle %7 of the (!PS or is independent of it. !n other 8ords6 the *#estion is 8hether or not an eception for teaching p#rposes introd#ced #nder &rticle %0/2 is re*#ired to pass the three-step test. he *#estion is a s#bGect of m#ch debate. Certain legal commentators follo8ing the :; Panel ecision in /nited States " Section <<>? of the /.S. $opyright ct 6 claim that the three-step test applies to all ecl#sive rights of copyright holders /incl#ding the right to #se 8orks for teaching
44
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p#rposes and re*#ires all proposed eceptions to pass the test.,0 Fo8ever6 other commentators read the
three-step test narro8ly as applying only in addition to the
eisting eceptions in the Berne Conventions 8hen the test is compatible 8ith the re*#irements of those in the Berne Convention.,% he )lectronic 1rontier 1o#ndation /)11 arg#es that on tracing the history of the negotiation of the Stockholm Conference of the Berne Convention6 it is seen that the history s#pports the interpretation that the three-step test does not apply to those areas 8here members are granted the discretion to create eceptions recogni@ed in the Berne Convention s#ch as &rticle %0/2. ;n this basis6 )11 arg#es that a co#ntry can create eceptions #nder &rticle %0/2 of the Berne Convention even tho#gh it does not satisfy the three-step test .,2
he three-step test also finds place in (!PS6 the :C and the :PP as stated earlier and it governs the creation of eceptions and limitations to rights ne8ly granted #nder these treaties. !n the co#rse of the negotiations of the treaties in %9956 developing co#ntries epressed concern over s#ch a provision 8hich had a potential impact of restricting the sovereignty of member states over creating eceptions in their national copyright la8s /the discretion for s#ch creation being granted to the member states #nder the Berne Convention tailored to meet domestic needs.,7 &s a res#lt6 member states adopted an agreed statement preserving the co#ntries eisting copyright eceptions and allo8ing the co#ntries to introd#ce appropriate eceptions to meet domestic needs. he statement epressly protects the Berne Convention eceptions from the scr#tiny of the three-step test #nder the (!PS. !n fact6 &rticle %0 of the :C 8hich incorporates the three-step test epressly states that the test does not6 in any 8ay6 epand or red#ce the scope of the eisting eceptions #nder the Berne Convention. !t f#rther affirms that member states are free to etend eceptions to ecl#sive rights into the digital environment to s#it the domestic needs. ,0
Sam (icketson6 <&pplying the hree-Step est in the igital )nvironment=6 20046 available at 888.8ipo.intedocsmdocscopyright...sccrD%"D888D%%%4"2.ppt /last visited on November 206 2009. ,% See 3a8rence 3iang6
4,
Draft: For !"#$""!o% &$r&o"'" o%()
Considering that the agreed statement epressly protects erosion of any eisting eceptions in national copyright la8s #nder the Berne Convention from the infl#ence of the three-step test incorporated #nder the :C and the :PP6 it is s#bmitted that &rticle %0/2 can be interpreted to be independent of the three-step test . his is of partic#lar significance to promoting access to copyrighted 8orks for the print impaired. &n interpretation s#ggesting that &rticle %0/2 is independent of the
three-step test
8o#ld imply that an eception for '%t!o% o% R!.t" of P'r"o%" =!t. D!"a,!(!t!'"
he >nited Nations Convention on the (ights of Persons 8ith isabilities and its ;ptional Protocol 8as adopted on %7 ecember 2005 at the >nited Nations Fead*#arters in Ne8 ork and 8as opened for signat#re on 70 ?arch 200". !t entered into force on ?ay 76 200+.,4 !ndia has signed and ratified the Convention. he Convention aims to s#pport the f#ll and effective participation of persons 8ith disabilities in social life and development,, and to advance the rights and protect the dignity of persons 8ith disabilities,5 and to promote e*#al access to employment6 ed#cation6 information6 goods and services. he Convention strives to ens#re accessibility for persons 8ith disabilities and re*#ires parties to provide accessible technology /incl#ding comm#nication and information technology for persons 8ith disabilities at affordable prices.," h#s6 provision of 8orks in accessible formats to print ,4
>nited Nations6 /nited 0ations $on)ention on the Aight to 'ersons with Disabilities6 available at http$ 888.#n.orgdisabilitiesdefa#lt.aspQnavidR%7JpidR%,0 /last visited on November 206 2009 ,, &rticle %6 >nited Nations Convention on the (ights to Persons 8ith isabilities6 2005 />NC(P ,5 &bid ," &rticle 96 >NC(P
45
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impaired persons is an obligation of parties to the Convention. Parties are re*#ired to take appropriate meas#res to ens#re availability of information to persons 8ith disabilities6 at par 8ith the general pop#lation. &rticle 2% of the Convention casts an affirmative obligation on the state parties to effect#ate the freedom of speech and epression6 /incl#ding the freedom to seek6 receive and impart information. he provision calls for parity bet8een persons 8ith disabilities and others in so far as the freedom of speech and epression are concerned. his 8o#ld incl#de6 as provided #nder the Convention6 accepting and facilitating the #se of Braille6 a#gmentative and alternative comm#nication6 and all other accessible means6 modes and formats of comm#nication of their choice by persons 8ith disabilities in official interactions. Parties are also re*#ired to take all appropriate steps to ens#re that la8s protecting intellect#al property rights do not constit#te an #nreasonable or discriminatory barrier to access by persons 8ith disabilities of c#lt#ral material. ,+ he Convention marks a shift in the approaches to persons 8ith disabilities from the
&rticle 70/76 >NC(P
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p#rpose of the Convention. )*#ality of opport#nity and accessibility are some of the general principles on 8hich the Convention is based. !t is heartening to note that the Convention epressly highlights in the Preamble6 nder &rticle 4/f of the Convention6 one of the general obligations of State Parties is to
4+
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ens#res that print impaired persons eercise their legal capacity incl#ding their f#ndamental rights and freedoms on an e*#al basis 8ith others 8hich6 they have been #nable to do in absence of the eception. &rticle 9 of the Convention 8hich specifically deals 8ith accessibility re*#ires that state parties to take appropriate meas#res to provide disabled persons 8ith access to information
and
comm#nications6
incl#ding
information
and
comm#nications
technologies and systems. &rticle 9 also specifically mandates the state parties to promote the design6 development6 prod#ction and distrib#tion of accessible information and comm#nications technologies at an early stage so that these technologies and systems become accessible at minim#m cost. he Convention lays do8n that persons 8ith disabilities are entitled to the right to freedom of epression and opinion6 incl#ding the freedom to access and impart information on an e*#al basis 8ith the others. ,9 1or the p#rpose of providing access to s#ch right6 state parties are mandated #nder &rticle 2% of the Convention to provide
he Convention recogni@es the need for international cooperation as a s#pport system for national efforts for the reali@ation of the p#rpose and obGectives of the Convention and calls for state parties to
&rticle 2%6 >NC(P.
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between and among States and, as appropriate, in partnership with rele)ant international and regional organi3ations and ci)il society, in partic!lar organi3ations of persons with disabilities.=50 &rticle 72/%/d of the Convention mandates state parties to take meas#res providing as appropriate6 technical and economic assistance in this regard6 incl#ding by facilitating access to and sharing of accessible and assistive technologies6 and thro#gh the transfer of technologies. !n short6 the Convention recogni@es that disabled persons are entitled to rights incl#ding the right to a free and informed choice6 the right to access information6 the right to freedom of epression and opinion and the right to a c#lt#ral6 social and political life at par 8ith other persons in society. !t mandates the State to ens#re disabled persons6 the access to these rights at minim#m cost considering the economic depravity of maGority of disabled persons across the 8orld. !t specifically re*#ires the intellect#al property regime of state parties to remove all #nreasonable and discriminatory barriers to access of c#lt#ral materials by disabled persons. h#s6 it is s#bmitted6 that !ndia is6 in fact6 obliged to amend the copyright la8 to remove all barriers 8hich discriminate against the print impaired and restrict their right to access information and th#s6 restrict their eercise of their f#ndamental rights. he Convention f#rther promotes international cooperation and th#s6 !ndia is obliged to remove all barriers restricting conversion of copyright material and dissemination of information in accessible formats at a minim#m cost. !n vie8 of the same6 barriers on eport and import of copyrighted material and material in accessible formats 8hich not only ca#se d#plication of 8ork b#t also raise the costs of conversion and distrib#tion so high that it becomes impossible for print impaired persons to access material6 m#st be eliminated. !t is of importance to note that the Bombay Figh Co#rt has6 in the case of Aan2it @!mar Aa2ak v. State Bank of &ndia /:P No. ,"5200+6 decided on ?ay +6 20096 held that altho#gh the Convention has not been incorporated into m#nicipal la86 as long as it is not in conflict 8ith m#nicipal la8 and can be read to form part of (ight to 3ife #nder &rticle 2%6 it is enforceable. !n effect6 the Co#rt has read into !ndian la86 the provisions of the Convention. !n addition6 since the S#preme Co#rt held to that effect in :ishaka v. State of Aa2asthan65% it is a 8ellsettled position of la8 that 50 5%
&rticle 72/%6 >NC(P. &!( %99" SC 70%%.
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international conventions and norms are to be read into domestic la8s in the absence of domestic la8 in that area as long s#ch conventions and norms are consistent 8ith the provisions of national la8. (ight no86 !ndian copyright la8 not only fails to provide access to technology and information in accessible formats to its print impaired citi@ens b#t is also drafted in s#ch a 8ay that any attempt on part of a person to provide s#ch access by reprod#ction of 8orks in accessible formats fall fo#l of copyright reg#lations. !n light of the same6 it is s#bmitted that it is indeed obligatory on part of the legislat#re to enable print impaired persons to access technology and information incl#ding 8orks protected by copyright at affordable costs and at par 8ith the rest of the pop#lation.
,%
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&s I#dith S#llivan has pointed o#t in her st#dy on copyright limitations and eceptions for the vis#ally impaired6 it is important to note that many co#ntries have already provided for eceptions in their copyright la8s to permit reprod#ction andor distrib#tion of printed material in accessible formats for the benefit of the print impaired. &s I#dith S#llivans st#dy points o#t6 there are ," co#ntries in the 8orld today that have incorporated specific provisions for the benefit of the vis#ally impaired specifically or to assist print impaired persons more generally6 by making a copyright 8ork available to them in an accessible form.52 &nne#re & contains a list of co#ntries that define #nder their copyright la8s6 acts 8hich are permitted 8itho#t6 in fact6 #sing lang#age of the acts that are restricted by copyright. hese eceptions6 are ho8ever6 limited by other conditions re*#ired to be f#lfilled as prescribed else8here in their la8s.
!t m#st be noted that the needs of print impaired persons vary greatly 8ith the kind of impairment they s#ffer from and the degree of s#ch impairment. :hile some vis#ally impaired persons may be able to read Braille6 persons 8ith other kinds of print impairment may not find any #se for doc#ments in Braille. &mong persons 8ith vis#al impairment itself6 those 8ho are impaired at birth may have learnt to #se Braille all along 8hile persons 8ho ac*#ire s#ch impairment m#ch later in life may not be able to learn Braille. h#s6 s#itable accessible formats sho#ld incl#de other formats s#ch as a#dio recordings6 large print p#blications and photographic enlargements. :ith technological advancement6 there are more 8ays of accessing material in print s#ch as6 thro#gh the #se of screen-reading soft8are and talking digital books. h#s6 it is important that an eception to copyright in favo#r of print impaired persons permits conversion to different formats and does not restrict s#ch conversion to specific formats. Some co#ntries s#ch as Cameroon6 China6 !celand6 !ndonesia limit their eceptions only to the prod#ction of Braille copies. &t the same time6 aro#nd 2% co#ntries have provided eceptions that are not limited to conversion to specified formats. &nne#re B lists the co#ntries 8hich have provided eceptions in their copyright la8s for conversion to any accessible format 52
I#dith S#llivan6
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8itho#t limiting s#ch eception to allo8 only certain types of formats. 57 ;f the other co#ntries 8hich allo8 eceptions to copyright for the benefit of print impaired persons6 %9 co#ntries restrict s#ch eceptions to conversion of doc#ments to Braille or other specific formats.54 &nne#re C contains a list of those co#ntries 8hich provide for conversion to only specialised formats.
!t 8o#ld be #sef#l to do an ill#strative st#dy of a co#ple of cases in this regard so that 8e are afforded a previe8 of the sit#ation in !ndia after an analogo#s amendment is effected to the !ndian copyright la8.
U%!t' *!%o3
he prod#cers of accessible material for the print impaired in the >L 8ere re*#ired to obtain permission from copyright holders for conversion of every title prior to 2007. !n most cases6 it 8as #nclear as to 8ho held the rights to act#ally give s#ch permission ' 8as it the p#blisher6 the literary agent or the a#thor of the 8orkQ !n many cases6 it 8as #nclear if the p#blisher had already given permission to another entity. !n absence of any la8 a#thori@ing instit#tions to make legal copies of material in accessible formats6 it 8as diffic#lt for right holders to tr#st the instit#tions themselves. I#dith S#llivan cites the eample of the National 3ibrary for the Blind 8hich 8as one s#ch organi@ation in the >L making copies in accessible format for the vis#ally impaired. She states that p#blishers 8ere #ns#re of the intentions of the N3B and in most cases6 ref#sed permission. 1#rther6 there 8as enormo#s conf#sion abo#t the etent and mode of payment. ?ost of the time6 the print impaired persons are economically dis-empo8ered and s#ch costs impose a h#ge b#rden on persons converting the material as 8ell as the persons 8ho are the beneficiaries of the same /that is6 the print impaired persons. !n the event permissions are given6 they came 8ith a lot of restrictions s#ch as on geographical etent of loans6 n#mber of copies that co#ld be made and time before permission 8o#ld need to be so#ght again. h#s6 obtaining permission 8as a h#ge administrative b#rden not to mention an economic one as 8ell. 57 54
&bid at 75. &bid at 7+.
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!n 20076 a legislative change 8as introd#ced in the >L carving o#t an eception to copyright to enable making m#ltiple accessible copies of copyrighted material 8hile leaving it open to copyright holders to set #p a scheme for licensing 8hich is not more restrictive than 8hat is permitted by the eception itself. his made it m#ch simpler for conversion of copyrighted material in accessible formats as 8ell as giving access of the same to the print impaired. he licensing scheme clarified terms of payment and made it administratively easier to sec#re permission for conversion. I#dith S#llivan cites the eample of the Copyright 3icensing &gency 8hich set #p the licensing scheme for conversion of books and Go#rnals into accessible formats. & condition #nder the scheme 8as that all information abo#t the converted material had to be entered into an online database. his made it easier for all persons re*#iring copies of 8orks in accessible formats to ascertain if it act#ally eisted and determine the person or organi@ation holding its rights. !t also avoided d#plication of 8ork since it provided information on previo#s attempts6 if any6 to convert the same material. Copyright holders also had access to information abo#t entities 8ho re*#ired any additional access to their 8ork.
U%!t' Stat'" of A3'r!#a
!n the >nited States6 access to printed material in formats accessible by the print impaired is6 in fact6 a civil rights iss#e. :hile Section ,04 of the (ehabilitation &ct6 %9"7 deals 8ith ed#cation programmes 8hich receive federal f#nding6 the !ndivid#als 8ith isabilities )d#cation &ct6 2004 /!)& re*#ires p#blic schools to make available to all eligible children 8ith disabilities a free and appropriate p#blic ed#cation in the least restrictive environment appropriate to their individ#al needs. h#s6 the >S la8 allo8s school tets and ed#cational material for children to be converted in electronic or other formats accessible by the print impaired. &n amendment to the la8 re*#iring #sers to obtain permission from copyright holders for s#ch conversion 8as effected in the Chafee &ct of %995 or the Copyright 3a8 &mendment6 %995. his amendment provides for certain a#thori@ed entities to reprod#ce or distrib#te copies of a broad range of previo#sly p#blished literary 8orks in accessible by print impaired persons. &#thori@ed entities m#st
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screen recipients and provide access to their collections to *#alified individ#als. he !)& establishes the National !nstr#ctional ?aterials &ccess Center /N!?&C 8hich is stat#torily obliged to provide access to print instr#ctional materials6 incl#ding tetbooks6 in accessible media6 free of charge6 print impaired persons in elementary schools and secondary schools in accordance 8ith certain prescribed terms and proced#res. he legislation re*#ires a local ed#cational agency that chooses to coordinate 8ith N!?&C to contract 8ith a p#blisher of the copyrighted material6 either to re*#ire the p#blisher to provide electronic files of the content of that material to N!?&C6 or to p#rchase the material from the p#blisher that are already prod#ced in accessible formats. his makes ed#cational material for print impaired children in the >S more accessible and affordable.
Boo?".ar'or
Bookshare.org is an initiative in the >S& 8hich is s#pported by a non-profit organi@ation6 Benetech.5, his initiative operates #nder the special eception to copyright for the benefit of the print impaired persons 8hich is permitted by the >S copyright la8. his eception allo8s for reprod#ction of copyrighted 8orks into speciali@ed formats accessible by print impaired persons6 s#ch reprod#ction being s#bGect to certain prescribed conditions. his is indeed an eample to ill#strate the impact an enabling eception in national la8 may have on millions of print impaired persons. Bookshare.org is an online comm#nity facilitating print impaired persons to have access to books 8hich have been scanned by members. his 8ay6 d#plication of 8ork can be avoided and a single members effort in scanning a 8ork may benefit an entire comm#nity of print impaired persons. Bookshare.org also obtains digital copies of books directly from the p#blishers. he scanned copies of 8orks s#bmitted by members and digital copies directly obtained by p#blishers are converted to digital talking books and digital Braille. he 8orks in these accessible formats are distrib#ted to schools6 libraries and to other individ#als having print impairment. !t has been reported that Bookshare.orgs eperience of getting agreements 8ith p#blishers has been *#ite positive and it is no8 in partnership
5,
See http$888.bookshare.org /last visited November 206 2009.
,,
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8ith 3e ?#ndi Pro Bono 1o#ndation 8hich is 8orking on p#blisher agreements in Ne8 ork and 3ondon.
!t is ho8ever6 disheartening to note that initiatives s#ch as bookshare.org have their activities largely confined to s#pplying digital copies of 8orks only 8ithin the >S or s#ch other domestic G#risdiction as that initiative may relate to6 beca#se national la8s6 even 8hile permitting eceptions for the benefit of their o8n print impaired citi@ens do not provide for import or eport of s#ch copies to facilitate access to print impaired individ#als o#tside the co#ntry. 1or instance6 bookshare.org has global rights on ro#ghly 2000 titles55 8hich6 even 8hile being *#ite commendable an achievement in its o8n right considering the kind of legal and other barriers that s#ch an initiative faces6 is very minisc#le compared to the total n#mber of titles act#ally p#blished in the 8orld. !n the >S alone6 the n#mber of p#blications 8hich come into the market in a year are in lakhs and so is the case in every other co#ntry incl#ding !ndia. herefore6 compared to the total n#mber of p#blications released 8orld8ide6 rights over 2000 titles is6 even 8hile being a start6 hardly effective to address the accessibility iss#e facing print impaired persons 8orld8ide. hese restrictions on import and eport of 8orks in accessible formats 8hich are imposed by national copyright la8s of several nations severely restrict the access to s#ch 8orks of print impaired persons and in fact6 make it impossible for them to obtain access. his barrier is6 in fact6 in addition to the barrier of high costs 8hich may have to inc#rred in conversion and distrib#tion given the restrictions in the c#rrent legal regime. igital technology has afforded a great opport#nity to provide access to print impaired persons since it is only a matter of economies of scale 8here efforts in one co#ntry to make accessible formats act#ally benefits another co#ntry greatly. Conversion of a book into an accessible format is etremely epensive and far eceeds the cost of the book itself. !t also involves conversion of the 8ork into an intermediate digital format from 8hich act#al copies in an accessible format s#ch as Braille become m#ch cheaper to convert to. #e to restrictions on eport andor import of s#ch convertedintermediate copies in national copyright la8s of several co#ntries has posed to be a great barrier to international sharing or cross co#ntry echange of 8orks for the benefit of the print 55
&bid.
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impaired persons. &nne#re lists the co#ntries 8hich6 even 8hile6 providing for eceptions in their copyright la8s benefit print impaired persons impose restrictions on import and eport of s#ch copies. !t also incl#des a list of the co#ntries 8herein provisions for eport andor import of accessible copies are m#ch more facilitative and 8herein p#blisher agreements are6 in fact6 easier to obtain.
I%!a% I%!t!at!>'"
Several not-for-profit organi@ations in !ndia have been actively 8orking for the rights of persons 8ith print disabilities to have access to printed material in alternative formats. Seven of these several organi@ations have been 8orking in collaboration on problems in copyright la8 and policy in !ndia 8hich impose restrictions on the activities of print impaired person. hese seven organi@ations 8hich constit#te the P#blication &ccess Coordination Committee /P&CC are$ a Blind Erad#ates 1or#m of !ndia6 ?#mbai b Blind Persons /?ens &ssociation6 ?#mbai c r L ? Shah Self Hision Centre6 (amnarian (#ia College6 ?#mbai d Felen Leller !nstit#te for the eaf and eafblind e !ndian &ssociation for the His#ally Fandicapped f National &ssociation for the Blind6 !ndia g aviers (eso#rce Centre for the His#ally Challenged6 St aviers College6 ?#mbai
he P&CC s#bmitted a Goint response to the Copyright ;ffice at the ?inistry of F#man (eso#rce evelopment commenting on the changes re*#ired to be made to copyright la8 for the benefit of persons 8ith print impairment.5" P&CC has made an attempt to bring attention to the diffic#lties enco#ntered 8hen seeking permission from copyright holders to make printed material available in alternative formats6 especially 8hen s#ch right holders are #na8are of the needs of persons 8ith print impairment. ;f the many initiatives #ndertaken by vario#s organi@ations in !ndia 8orking for providing access to 5"
See P#blic &ction Coordination Committee6 <(esponse to the !nvitation of Hie8s for Changes in the Copyright &ct of !ndia6 %9," 8ith Special (eference to Proposed Cla#se ,2/@a 1oc#sing on the His#ally Challenged and the Print isabled=6 ?ay %26 20056 available at http$888.daisyindia.orgP&CC T20(epresentation.pdf /last visited November 206 2009.
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persons 8ith print impairment6 of printed material in alternate formats6 a co#ple of note8orthy ones are the initiatives of the National &ssociation for the Blind and the aisy 1or#m of !ndia.
he National &ssociation for the Blind /N&B established the first prod#ction and distrib#tion centre for talking books called the alking Books Centre. N&B later envisaged the concept of talking maga@ines in fo#r lang#ages 8ith s#ch maga@ines recorded on cassette and played in vario#s instit#tes catering to the needs of the vis#ally impaired.5+ Converted forms of books of general interest along 8ith tetbooks for children in higher classes 8ere also added to the list. ?aterial in print 8as th#s converted to so#nd recording and it 8as provided to persons 8ith vis#al impairment free of cost.
he aisy 1or#m of !ndia /1! is an organi@ation constit#ted in 200" by more than 50 organi@ations from all over !ndia involved prod#ction of Braille6 talking books or large print books for the benefit of persons 8ith print impairment.59 here are different formats in 8hich a material in print can be accessed by a person 8ith print impairment. hese may be Braille6 alking Books6 3arge Print Books or )-etbooks. &!S refers to igitally &ccessible !nformation System and a &!S book consists of typically a set of digital files that incl#de$"0 α ) ;ne or more digital a#dio files containing a h#man narration of part or all of the
so#rce tetO β ) & marked-#p file containing some or all of the tet /strictly speaking6 this marked-#p
tet file is optionalO χ ) & synchroni@ation file to relate markings in the tet file 8ith time points in the a#dio
fileO and δ ) & navigation control file 8hich enables the #ser to move smoothly bet8een files
8hile synchroni@ation bet8een tet and a#dio is maintained. 5+
See National &ssociation for the Blind 8ebsite available at http$888.nabindia.org /last visited November 206 2009. 59 See aisy 1or#m of !ndia 8ebsite available at http$888.daisyindia.org /last visited November 206 2009. "0 See aisy Consorti#m 8ebsite available at http$888.daisy.orgabo#tD#sinde.php /last visited November 206 2009.
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he &!S Standard for prod#ction of material in alternate accessible format allo8s the prod#cing agency f#ll fleibility regarding the mi of tet and a#dio ranging from a#dioonly6 to f#ll tet and a#dio6 to tet-only. :orks prod#ced #sing the &!S Standard are one of the most easily accessible formats for print impaired persons 8hich are not only very economical b#t also rich in feat#res and easily navigable. !t provides for a richer reading eperience since it contains feat#res enabling G#mping to any page of the book or to the net or previo#s chapter or s#b-section or sentence. "% &!S talking books can th#s be played in C players6 mobile phones6 comp#ters6 flash memory discs6 !-pods6 etc. Braille Books prod#ced #sing the &!S Standard can be printed on paper or on refreshable Braille display. 3arge Print Books can be read on the comp#ter or on paper and )-etbooks can be read o#t thro#gh a comp#ter thro#gh #se of screen reading soft8are 8hich is also economical to #se."2
?ember organi@ations /8hich are essentially not-for-profit organi@ations"7 of the 1! prod#ce and maintain library of igital alking Books6 Braille Books or )-et books6 these books being converted from printed form to accessible forms. he library for books in accessible formats is an effective str#ct#re to ens#re that members are able to obtain a copy of a book prod#ced by any other member of the for#m even 8hile s#ch for#m is o#tside the organi@ation of the member in *#estion. he seamless net8ork bet8een vario#s organi@ations enables combined proGects to be #ndertaken for distrib#tion and prod#ction of books in accessible formats all over the co#ntry th#s avoiding d#plication of 8ork and c#tting do8n costs. S#ch a library str#ct#re also makes it convenient for efforts in !ndia to be part of the net8ork of initiatives for print impaired persons and libraries 8orld8ide.
he 1! is in partnership 8ith Bookshare.org 8ith 8hom it has created a #ni*#e innovative e-library model 8here *#alified #sers 8ith print impairment access books in alternate accessible formats. By virt#e of s#ch partnership6 Bookshare !ndia is also a "% "2 "7
See &bid. See http$888.daisyindia.org02Fello&!S.html /last visited November 206 2009. See http$888.daisyindia.org /last visited November 206 2009.
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member of the 1!. Bookshare.org has also partnered 8ith three organi@ations in !ndia to reg#late registration of !ndians 8ith print impairment 8ho seek membership of Bookshare.org6 s#ch membership enabling access to the #sers of books for 8hich 1! and Bookshare.org Gointly 8ork to get permission for conversion and convert into accessible formats incl#ding titles of books 8hich have obtained permission internationally for conversion and distrib#tion."4 S#ch registration is helpf#l6 as is seen belo86 especially to ens#re that the end beneficiaries of any amendment in the la8 or any action taken by the Eovernment or private bodies are only persons 8ith print impairment and not other persons seeking to free ride on the str#ct#re.
hese organi@ations recogni@e the limitations 8hich the c#rrent copyright regime places on their efforts to provide access to all titles p#blished in normal print format in alternate formats for the benefit of persons 8ith print impairment. ?ass conversion of books into accessible formats is not provided for specifically by the c#rrent la8 reg#lating copyright in !ndia and th#s6 s#ch an effort may tantamo#nt to violation of the rights of the copyright holders and may be s#bGect to penalty #nder la8. !n vie8 of the same6 the only 8ay to provide access is by obtaining permission for conversion6 reprod#ction and distrib#tion of 8orks in accessible format from individ#al p#blishers. he partnership bet8een 1! and Bookshare.org has been helpf#l in Gointly seeking permission and s#pport from the p#blishing comm#nity in !ndia to convert books into accessible formats. 1! has th#s appealed to p#blishers to be sensitive to the needs of persons 8ith print impairment and grant permission for conversion of the 8orks they p#blish into accessible formats. ", his process is not only #ncertain /as there is no g#arantee that the p#blishers 8ill grant permission for conversion as there is no obligation on them #nder la8 to do so b#t also c#mbersome as it is time cons#ming and epensive. &ny barriers to sharing an already converted copy among different gro#ps of #sers 8ill only ca#se d#plication of 8ork and h#ge epense. Nevertheless6 1! has so far obtained permission from only a fe8 p#blishers and this acco#nts for an insignificant n#mber of books converted relative to the total n#mber of titles p#blished every year."5 "4 ", "5
See &bid. &bid &bid
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!t is heartening to note that even in the absence of effective social and economic empo8erment of persons 8ith disabilities in !ndia and in the face of la8s 8hich not only fail to protect b#t hinder access of persons 8ith disabilities to material aiding their ed#cation and overall development6 organi@ations s#ch as the N&B and the 1! have taken #p effective steps to reach o#t to persons 8ith vis#al impairment for several decades no8. Fo8ever6 these have been inade*#ate to meet the needs of the entire co#ntry. !n addition to the lack of reso#rces for conversion6 the diffic#lty of distrib#ting them to reach beneficiaries in distant areas has res#lted in a maGority of persons being left o#t of the kno8ledge market. Contemporary sharing and distrib#tion models s#ch as bookbole.com 8hich is an internet based platform for blind and vis#ally impaired persons to share accessible content open #p h#ge possibilities for access to kno8ledge at a global level for print impaired persons /as is detailed belo8. Fo8ever6 all these models are #nable to achieve their maim#m potential for s#ccessf#l #tilisation d#e to an #ns#pportive legal regime. !t is disappointing to see that pioneers of 8orks reaching o#t to persons 8ith vis#al impairment depend solely #pon the caprice of p#blishers in carrying o#t their 8ork. &ppeals and statements s#ch as
Boo?,o('#o3
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:hile Bookshare.orgs initiative to obtain p#blishers consentagreement represents a top-do8n approach to serve the needs of the print impaired6 another initiative to reach o#t to the needs of the print impaired has recently taken shape in !ndia. Bookbole.com is an online platform la#nched by !ncl#sive Planet in association 8ith the Centre for !nternet and Society 8herein print impaired persons can share 8orks in accessible formats 8ith each other6 s#bGect to certain terms of #se. he idea behind the initiative is simple. Considering that the availability of 8orks in accessible formats in almost negligible6 those 8orks that are already converted into accessible formats m#st be easily shared among the print impaired persons. Bookbole.com is an ans8er 8hich is comm#nity driven and incl#sive. & #ser do8nloading content from the online sharing platform represents that he is either print impaired or that he is a caregiver6 teacher6 parent or g#ardian of a person 8ith print impairment or that he represents an organi@ation providing assistance and s#pport to print impaired persons and that he is #sing the service solely for the benefit of persons 8ith print impairment. 1#rther6 the initiative is only to provide a platform for print impaired persons to share and does not etent to validating the nat#re and content of the 8orks #ploaded. he 8ebsite also has a
""
See http$888.bookbole.com /last visited on November 2%6 2009.
52
Draft: For !"#$""!o% &$r&o"'" o%() PART V: OTHER C ONSIDERATIONS
TO BE
ACCOMMODATED
WHILE PROVIDING FOR AN E XCEPTION
TO COPYRIGHT IN FAVOUR OF PRINT IMPAIRED PERSONS
!t is indisp#table that providing eceptions to the reprod#ction right of a copyright o8ner for the benefit of print impaired persons is the first and the most important step to8ards enabling access to s#ch persons to copyrighted 8orks. Fo8ever6 introd#cing s#ch an eception 8itho#t regard to considerations 8hich #ltimately infl#ence the free and f#ll eercise of the eceptions by the beneficiaries 8o#ld amo#nt to the eception becoming a paper tiger and the la#dable obGective behind s#ch a move 8o#ld be defeated. !n light of this6 certain considerations 8hich need to be kept in mind 8hile drafting the eceptions in order that s#ch eceptions are effective are detailed belo8. ?any of these considerations have also been highlighted by the :orld Blind >nion in the advice note iss#ed by them on eceptions to copyright for blind6 partially sighted and other print disabled persons.
%. here sho#ld be no restriction on conversion of 8orks into partic#lar formats or technologies and sho#ld cover both analog as 8ell as digital formats.
2. &ccess to copyrighted 8orks m#st be provided in s#ch a 8ay that technological protection meas#res may be circ#mvented and digital rights management does not pose a barrier to s#ch access by print impaired persons.
7. &ccess to copyrighted 8orks by 8ay of a right to reprod#ce s#ch 8orks in accessible formats m#st be complimented 8ith rights of distrib#tion /incl#ding rental and lending6 adaptation6 broadcasting by 8ireless means6 other comm#nication to the p#blic by electronic transmission of the 8ork so that the right to access the 8ork is eercised f#lly and effectively.
4. !t is also important to establish a mechanism for sharing the 8ork in accessible format amongst other print impaired persons /for non-commercial #se beca#se this 8o#ld not only ens#re free dissemination of information /8itho#t any harm to the copyright holder b#t also achieve that res#lt economically. Considering that making copies of
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Draft: For !"#$""!o% &$r&o"'" o%()
8orks in accessible formats is etremely cost ineffective6 enabling sharing a converted copy among other print impaired persons only makes it that m#ch more economical for all persons concerned.
,. !t is important to determine the role of intermediaries in reprod#ction and distrib#tion of copyrighted 8orks in accessible formats to the beneficiaries /print impaired persons. hese intermediaries need not necessarily be print impaired persons and may be involved in reprod#ction and distrib#tion of the 8ork on a non-profit basis. 1or the p#rpose of this st#dy6 intermediaries are not #sers or beneficiaries of the 8orks in accessible formats. here is a great deal of scope for collaboration bet8een a#thors and p#blishers on the one hand and specialist agencies /intermediaries on the other6 to integrate p#blication processes and share content in a tr#sted environment. S#ch agreements co#ld contrib#te significantly to red#cing the c#rrent chronic shortage of accessible material.
5. !n vie8 of enabling sharing of accessible material across co#ntries6 it sho#ld also be possible for accessible material created #nder an eception in one G#risdiction to be imported for the benefit of blind or partially sighted people in another. his re*#ires provision to be b#ilt into national legislation6 at least amongst co#ntries 8hich have comparable eceptions.
". !t is essential that organi@ations that convert and distrib#te accessible material are able to recover their costs.
+. & str#ct#re for compensation to right holders may be 8orked o#t 8here conversion and distrib#tion is done on a for-profit basis keeping in mind that /a income levels of print impaired persons are6 more often than not6 lo8 /considering their social circ#mstances and the meas#res taken by the state to grant them access to their constit#tional rights and entitlements6 /b the cost of converting a 8ork into accessible formats #s#ally eceeds by several times6 the cost of the 8ork itself.
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9. !t is important that the benefits of the eception to copyright are availed of only by persons 8ith disability and not by others6 8ho may free ride on s#ch an eception. :hile limiting the eception to
5,
Draft: For !"#$""!o% &$r&o"'" o%() CONCLUSION
:ith almost %0 per cent of !ndias pop#lation being print impaired6 addressing the basic needs of persons constit#ting that portion forms a critical iss#e in la8 making and governance. !n addition to f#ndamental needs s#ch as food6 clothing and shelter6 it is of #tmost importance that persons 8ith print impairment are able to eercise f#lly and freely their right to freedom of speech and epression6 right to information6 right to read and 8rite6 right to ed#cation and most critically6 the right to live 8ith dignity. !t is only 8hen one is enabled to eercise these basic rights that one can effectively and f#lly participate in the social6 political and c#lt#ral process of the co#ntry6 make meaningf#l contrib#tion to the pool of p#blic opinion and be able to make a responsible and informed choice in all areas of life. S#ch participation g#arantees citi@enship in an epanded and holistic sense so as to go beyond mere animal eistence. h#s6 lack of provision to enable a person to eercise any of the basic rights as mentioned above 8o#ld constit#te denial of s#ch rights and 8o#ld amo#nt to an #nconstit#tional act. !t is s#bmitted that there is no difference bet8een a positive act of s#ch denial and a fail#re to amend a restrictive legal regime 8hich effectively hinders persons from enGoying basic rights.
!n light of the same6 it is s#bmitted that the !ndian copyright regime is restrictive inasm#ch as it does not provide for conversion of copyrighted 8orks in print into formats 8hich are accessible by persons 8ith print impairment. his6 in the face of almost ,0 nations 8orld8ide providing for s#ch an eception to benefit print impaired persons only makes o#t a stronger case for the !ndia to act in this regard and f#lfill its obligation to enable citi@ens to enGoy their f#ndamental rights g#aranteed to them #nder the Constit#tion. S#ch an action on part of the government is also necessitated by the ratification by !ndia of international conventions and treaties 8hich re*#ire its member states to ens#re that its citi@ens 8ho are print disabled are able to f#lly enGoy right to life6 ed#cation6 information and freedom of speech and epression6 8ith some treaties specifically mentioning that member states sho#ld strive to alter their intellect#al property rights la8s to enable access to persons 8ith print impairment of 8orks in alternateaccessible formats.
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:hile some organi@ations are already 8orking to provide for s#ch access and have made significant progress in the form of providing access to several titles in accessible formats6 the same forms an insignificant portion of the total n#mber of titles 8hich are p#blished and available in the market at any given point. &n alteration of a restrictive legal regime 8o#ld provide a m#ch needed boost to this ca#se and ens#re that the benefit reaches a large n#mber of persons 8ith print impairment. :e propose an amendment to the Copyright &ct to create an eception to copyright in favo#r of persons 8ith print impairment so that they are granted access to 8orks in accessible formats at par 8ith other persons6 comfortably and at an affordable cost. he amendment m#st be sensitive to the disparities of income of persons 8ith print impairment and m#st devise a compensation scheme for right holders accordingly. Since6 persons 8ith vario#s types of print impairments /s#ch as vis#al impairment6 dysleia6 paralysis6 etc #se vario#s formats incl#ding Braille6 3arge Print Books6 alking Books6 )-tet books /in .tt and .pdf formats6 a#dio recordings6 the amendment sho#ld not create any restriction on the type of format into 8hich the 8ork is converted. Since the process of conversion is c#mbersome and epensive6 organi@ations creating converted copies sho#ld be allo8ed to recover costs of conversion and restriction on for-profit bodies making conversions sho#ld be removed as long as the right holders are reasonably compensated. 1inally6 the amendment sho#ld enable access to soft8are and other tools re*#ired for conversion and sho#ld not allo8 content o8ners to #se technological locks or any form of igital (ights ?anagement to precl#de persons 8ith print impairment from accessing their 8ork.
he c#rrent frame 8ith 8hich the scenario is analysed is one of intellect#al property rights being essentially a tool to g#arantee rights to creators of 8ork. >nder this frame6 any case made o#t in favo#r of social G#stice6 p#blic 8elfare and e*#ity 8o#ld essentially take the form of an eception to certain
5"
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democracy and a healthy society6 take sidelines in the face of granting rights to content o8ners. !t is s#bmitted that mobili@ing access to kno8ledge and providing right to receive and disseminate information are cr#cial aspects of eercising ones f#ndamental right to freedom of speech and epression6 information and ed#cation. !t can be arg#ed that it forms the basic str#ct#re #pon 8hich the !ndian Constit#tion is fo#nded. !t is time that the frame of analysis is shifted from one of rights of creators to one of enabling access to kno8ledge6 8ith d#e consideration for the costs and efforts of persons creating 8orks. S#ch an enabling frame makes o#t a strong case for granting access to persons 8ith print impairment of 8orks in print 8hich cannot be accessible by them in their normal format. (eforming the legal regime to ens#re s#ch access 8ill not be a *#estion of granting an Aeception to rights 8hich are already granted to o8ners of 8orks irrespective of the cost s#ch rights create on the development of kno8ledge reso#rce and pool of information available to citi@ens of a democratic society. & frame of analysis altered to mobili@e access to kno8ledge 8ill6 it is s#bmitted6 res#lt in a richer6 more G#st and e*#itable society providing for all citi@ens 8itho#t bias or discrimination.
5+
Draft: For !"#$""!o% &$r&o"'" o%() A%%'7$r'"
A%%'7$r' A"+
)ceptions defining permitted acts 8itho#t #sing lang#age of restricted acts Co#ntry China Croatia enmark !celand !reland ?aca# ?alaysia Netherlands Ne8 Kealand Poland Port#gal >nited Lingdom
Fo8 permittedrestricted acts are defined
)ceptions not limiting type of accessible format Co#ntry !stralia
!stria $roatia $3ech Aep!blic Denmark
Provision on accessible formats
"+
I#dith S#llivan6
59
Draft: For !"#$""!o% &$r&o"'" o%()
Finland
readable by visually impaired persons” and “make copies … by sound recording” France ;ermany ;reece &reland &taly %at)ia %ith!ania Mongolia 0etherlands 0ew Eealand 'oland Slo)akia Slo)enia Sweden
/nited @ingdom
)ceptions permitting Braille and other special formats Co#ntry rmenia 3erbai2an Belar!s B!lgaria Bra3il
+0
Fo8 specialised formats are defined
See I#dith S#llivan6
"0
Draft: For !"#$""!o% &$r&o"'" o%()
$anada
Dominican Aep!blic #l Sal)ador #stonia ;abon ;eorgia 1!ngary +apan
@a3akhstan @yrgy3stan Maca!
Malaysia 0icarag!a 0igeria 0orway
'anama 'er! 'ort!gal Aep!blic of @orea Singapore
Spain A!ssian Federation /3bekistan /nited States of
nit=
Draft: For !"#$""!o% &$r&o"'" o%()
merica
ecl#sively for #se by blind or other persons 8ith disabilities= A%%'7$r' D
L!"t of #o$%tr!'" t.at &'r3!t '7&ort a% !3&ort of a##'""!,(' =or?"
Co#ntry &#stralia Canada Chile enmark 1rance !reland Ne8 Kealand (#ssian 1ederation he Netherlands >S&
Fas it (atified the >NC(PQW es No es es No No No No es /8ith reservations es
W - :hile it is heartening to note that a fe8 co#ntries 8hich have not ratified the >NC(P yet have provided for enabling eceptions in respect of eportimport of copies6 it is disappointing to note that co#ntries 8hich have ratified the >NC(P /incl#ding !ndia have not provided for s#ch an eception in their national la8s.
"2
Draft: For !"#$""!o% &$r&o"'" o%() LIST OF AUTHORITIES
PRIMARY SOURCES
%. Constit#tion of !ndia /!ndia 2. Copyright &ct6 %+42 /)ngland 7. 1ederal Copyright &ct6 %"90 />nited States of &merica 4. !ndian Penal Code6 %+50 /!ndia ,. National Policy for Persons 8ith isabilities6 2005 /!ndia 5. Stat#te of &nne6 %"09 /)ngland ". he &greement on rade-(elated &spects of !ntellect#al Property (ights /(!PS6 %994 +. he Berne Convention for the Protection of 3iterary and &rtistic :orks6 %++5 9. he Constit#tion /)ighty Sith &mendment &ct6 2002 /!ndia %0. he )leventh 1ive-ear Plan /!ndia %%. he !ndian Copyright &ct6 %9," /!ndia %2. he !nternational Convention for the Protection of Performers6 Prod#cers of Phonograms and Broadcasting ;rganisations6 %95% /he (ome Convention %7. he Persons 8ith isabilities /)*#al ;pport#nities6 Protection and 1#ll Participation &ct6 %995 /!ndia %4. he (ight of Children to 1ree and Comp#lsory )d#cation &ct6 2009 /!ndia %,. he >nited Nations Convention for the (ights of Persons 8ith isabilities %5. he :!P; Copyright reaty6 %995 %". he :!P; Performances and Phonograms reaty6 %995
SECONDARY SOURCES
%. &my Lapc@ynski6 <he &ccess to Lno8ledge ?obili@ation and the Ne8 Politics of !ntellect#al Property=6 200+6 %%" *ale %aw +o!rnal 6 204 2. Brad Sherman J &lain Stro8el /)ds.6 Of !thors and Origins " #ssays on $opyright %aw6 /%994$ ;ford >niversity Press
"7
Draft: For !"#$""!o% &$r&o"'" o%()
7. Christophe Eeiger et al 6 <o8ards a Balanced !nterpretation of the hree-Step est in Copyright 3a8=6 200+6 706 #!ropean &ntellect!al 'roperty Ae)iew6 %26 p. 4"9 4. aisy Consorti#m 8ebsite available at http$888.daisy.orgabo#tD#sinde.php /last visited November 206 2009 ,. aisy 1or#m of !ndia 8ebsite available at http$888.daisyindia.org /last visited November 206 2009 5. E8en Fin@e6 nion6 <:orld Blind >nion general statement to :!P; 2009 Eeneral &ssembly= in http$888.keionline.orgnode527 /last visited November 206 2009
"4
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%5. Siva Haidhyanathan6 $opyrights and $opywrongs " he Aise of &ntellect!al 'roperty and 1ow it hreatens $reati)ity6 /200%$ Ne8 ork >niversity Press %". Neil :einstock Netanel6 $opyright 'aradox6 /200+$ ;ford >niversity Press %+. Bookbole.com6 http$888.bookbole.com /last visited on November 2%6 2009 %9. Bookshare.org6 http$888.bookshare.org /last visited November 206 2009
CASE LAWS
%. .@. ;opalan v. State of Madras &!( %9,0 SC 2" 2. sh!tosh ;!pta v. State of Aa2asthan /2002 4 SCC 74 7. Bandh!a M!kti Morcha v. /nion of &ndia &!( %9+4 SC +02 4. $#A$ v. /nion of &ndia &!( %99, SC 922 ,. $hiran2it %al v. /nion of &ndia &!( %9,% SC 4% 5. Dasarathi v. State of ndhra 'radesh &!( %9+, &P %75 ". Dinesh ri)edi, M.'. and Others v. /nion of &ndia /%99" 4 SCC 705 +. Donaldson v. Beckett %""4 % )ng. (ep. +7" 9. Dr. +agadish Saran and others v. /nion of &ndia /%9+0 2 SC( +7% %0. #ntertainment 0etwork >&ndia? %imited v. S!per $assette &nd!stries %imited 200+ /7" PC 7,7 /SC %%. Francis $oralie M!llin v. dministrator, /nion erritory of Delhi and Others &!( %9+% SC "45 %2. ;a!ri Shankar v. /nion of &ndia &!( %99, SC ,, %7. 1ead Masters v. /nion of &ndia &!( %9+7 Cal 44+ %4. &ndra Sawhney v. /nion of &ndia >&&? &!( 2000 SC 49+ %,. +agannath 'rasad v. State of /ttar 'radesh &!( %95% SC %24, %5. @esha)ananda Bharati v. State of @erala &!( %9"7 SC %45% %". M.;. Badappana)ar v. State of @arnataka &!( 200% SC 250 %+. Maneka ;andhi v. /nion of &ndia &!( %9"+ SC ,9" %9. Mohan v. /nion of &ndia /%992 S#pp % SCC ,94 20. Mohini +ain v. State of @arnataka &!( %992 SC %+,+ 2%. M!mbai @amgar Sabha v. bd!lbhai &!( %9"5 SC %4,,
",
