Rights of persons with disability and Copyright

Ed. Note.: This post, by Benjamin Vanlalvena, is a part of the NALSAR Tech Law Forum Editorial Test 2016.

How are disabled persons affected by Copyright Law?

The onset of the digital era has brought in an ease of access for persons with disabilities greater access to resources earlier not available not to them through assistive technology.

Copyright laws are set in place to protect the interest of the right-holder of the creative work. However, every time a visually impaired, blind or print disabled person wanted to convert the work into a format compatible with a screen reading software, they would have to reproduce the book in its entirety. A lot of E-books and other similar digital media content have Digital Rights Management (DRM) Systems which place technical restrictions to prevent the copies from being copied. This conflict between persons with disabilities having the right to access information and the copyright holder’s right to control copying of their work created an obstacle for such persons with disabilities leading to a ‘global book famine’. According to the World Blind Union, roughly 5 percent of the millions of books published were made available in formats which would be accessible to persons who are blind, visually impaired or print disabled. This is a cause of concern considering that there are 285 million persons in the world who are blind, visually impaired and print disabled, 90 percent of whom live in low-income settings in developing countries.

What has been done to address the interests of both parties?

To balance the interests of both parties, on 27th June 2013, the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled was adopted by member States of the World Intellectual Property Organization (WIPO), and with the ratification of the treaty by Canada, 20 countries having ratified the treaty, the treaty will come into force on September 30, 2016.

What is the Marrakesh Treaty and what does it attempt to do?

The Marrakesh Treaty is a recognition of the rights of blind/visually impaired/print disabled persons and the difficulties and obstacles faced in getting information from the books. It calls for contracting parties to adopt provisions in their respective domestic laws to permit reproduction, distribution works in accessible format for persons who are blind, visually impaired or print disabled. It is pertinent to note that this does not apply to all persons but organizations defined either under Article 2(c) of the treaty or in the domestic laws.

The Marrakesh Treaty takes note of Technological Protection Measures (“TPMs”) and in Article 7 states that Contracting Parties are to take measures to ensure that circumvention of the same would not be deemed illegal if used for the purpose mentioned in this treaty.

The treaty allows distribution of copies in an accessible format to for the exclusive use of beneficiary persons without the authorization of the right holder (even distribution to/import from another country).

The definition of a beneficiary in the Marrakesh Treaty is quite broad and is inclusive of persons suffering from dyslexia, paralysis, etc. Though it does not apply to audio-visual works according to Article 2(a), it applies to works in audio forms such as audiobooks. One must also note that Article 12(2) of the Marrakesh Treaty states that it is without prejudice to other limitations and exceptions for persons with disabilities provided by national law.

Beyond the Treaty

A number of countries in their national laws provide exceptions which are broader than the one provided in the Marrakesh Treaty. The scope in the Indian Copyright Act for example, allows for such an exception to be available for the benefit of persons with disability, which is inclusive of all disabilities requiring a special format to access the work. Countries like Australia, United Kingdom and United States of America also have some similar provisions of exceptions for persons with disabilities.

While the Marrakesh Treaty does not address the issue for every person with disabilities [such as those who are hearing-impaired] it is still a commendable step in that direction.

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