The Copyright Law provides the author of the work with the exclusive right to exploit his works, including the right to reproduction. This monopolistic right could be a detriment to a person with a disability since a visually impaired person may need to convert the original text of a book into a format that is accessible to him. Therefore, the exception for visually impaired persons would require them to allow conversion of the work in its entirety.
Also, there are laws like that in Europe and India, which state that all individuals alike have the fundamental right to access social-cultural works as well as to access information, respectively. The European human rights law states that each individual also has the right to participate in the creations and developments of these socio-cultural works regardless of frontiers. This provision lies in conflict with the Intellectual Property (IP) law.
As per the World Blind Union, only 5 percent of the millions of books published are made available in accessible formats for people who are visually impaired or print disabled. It is a cause of concern because there are as many as 285 million persons in the world who are either blind, visually impaired, or print disabled, of which 90 percent live in low-income settings in developing countries.
What is an Accessible Copy?
A person with a disability may need an accessible copy of the work protected under copyright law. The accessible copy is the one that has been produced to provide better accessibility suitable to the nature of the disability to access the information. Consider, for example, the following:
- A Braille, large-print, or audio version of a book for a visually impaired person.
- A book prepared for text-reading software for a dyslexic person.
- An electronic version of a work with navigation features that makes it easier for a disabled person to navigate around the document.
Kinds of Disabilities and the Exceptions Needed
- Aural Works and Disabilities: People suffering from an aural disability may be unable to perceive sound. Therefore, they may not be able to conceive the aural elements without the addition of components like visual or tactile formats, for instance, subtexts or subtitles.
- Visual Works and Disabilities: People suffering from a visual disability may be unable to perceive works projected in a visual form, which may include books, magazines, movies, serials, etc. Therefore, they may need to transform the content of the original work into an audio or tactile medium to make it disable-friendly.
- Copyright Works and Cognitive Disability: People suffering from cognitive disability could include those with genetic disabilities, learning disabilities, disabilities due to physical harm, etc. Therefore the same would require a wider range of possible transformations to adapt the content for people with each kind of disability.
- Copyright Works and Physical Disability: People suffering from a physical disability may encounter difficulty in interacting with available formats. It is, for this reason, there is an automatic page-turner so that people with disabilities can access information without the need for any assistance.
The following are a list of countries that offer exceptions within their copyright law to people with disability to enable them to access information from copyright-protected works.
|Nature of Exception||Number of Countries Offering Exceptions||Example of a Few Countries|
|No Exception||91||Afghanistan, Algeria, Andorra, Angola, Antigua & Barbuda, Bangladesh, Barbados, Benin, Bhutan, Bolivia, Botswana, Brunei Darussalam, Burkina Faso, Burundi, Cambodia, Comoros, Congo, Costa Rica, Cuba, Samoa, San Marino, Sierra Leone, Somalia, South Africa, Sudan, Suriname, etc.|
|Exception for all Disabilities
|28||Austria, Belgium, Bosnia and Herzegovina, Croatia, Czech Republic, Ecuador, Estonia, Gabon, Germany, Hungary, India, Israel, Italy, Liechtenstein, Malta, Mexico, Montenegro, Netherlands, Poland, etc.|
|Exception for People with Aural Disabilities
|25||Malaysia, Mongolia, New Zealand, Niue, Norway, Saint Vincent and the Grenadines, Thailand, Uganda, the United Kingdom, the United States of America, etc.|
|Exception for People with Cognitive/Mental Disabilities
|22||Philippines, Saint Vincent and the Grenadines, Singapore, Spain, Thailand, the United Kingdom, Uruguay, etc.|
The Marrakesh Treaty
The treaty sought a fine line balance between the interest of the author of the original work as well as the person suffering from a disability. 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). It calls for all the contracting parties to adopt provisions in their respective national laws to permit reproduction and distribution works in an accessible format for persons who are blind, visually impaired, or print disabled. The same is a positive step in the direction; however, it suffers from major defects as it does not address all kinds of disabilities like those who are hearing-impaired.
Understanding the Ambit of the Exception
The exception in favor of using the copyrighted work without attracting infringement claims works on the principle of inclusion, which means that all have the right to enjoy a particular piece of work, regardless of their caste, creed, sex, as well as nature of the disability. Therefore, the following are to be considered by the disabled person while making use of the work:
- Initial Lawful Possession: The exception to using the work applies only if the work has been initially acquired lawfully. Therefore, if a disabled person makes use of a downloaded copy from a pirated website, the exception will not apply regardless of the nature of the disability or the kind of circumstances.
- Non-Commercial Use: The exemption applies only where the impaired person makes use of the copies for personal use. To make copies of such a work for commercial purposes would automatically amount to Copyright Infringement.
- Accessible Commercial Copies: Where the author of the work has made disabled-friendly copies commercially available in the market upon reasonable terms, it would not authorize a person with a disability to make copies on his own accord. The only resort is to purchase such commercially available versions of the original works.
Certain exceptions may also apply to libraries or authorized persons/bodies to make copies and the copyrighted work available for disabled individuals for their personal use. The authorized bodies, basically, educational establishments that do not operate for profit in this aspect, as well as educational institutions, have to bear in mind the following:
- Intermediate Copies are Permissible: Intermediate copies are those that are created while generating several copies of the same work. The same can be stored and made accessible to other authorized bodies so that they do not need to repeat the entire process.
- Record Keeping: The authorized body or educational institution having the library must keep a fixed record and data entry of the accessible copies it makes, including the intermediate copies. A record of when and to whom such copies were made accessible should also be documented. After such a record is made, a notification to the copyright owner or his representative should be sent projecting a designated representation of the work.
- No Profit Making: The one who makes such work available in an accessible format to the person with a disability cannot earn profit from such a person. He may, however, recover the cost of creating and supplying the copy but not actually profit from it. For example, if a person in location A takes the help of a person in Location B, which is at a distance of 400 kilometers from A, the helper may recover the cost of the courier or parcel carrying such a converted version of the original work.
Problem Underlying the Digital Rights Management (DRM) Systems
The DRM system may create unnecessary hurdles for people with disabilities and override the disability exception secured under copyright laws of several different countries. The system simply places a technical restriction upon digitally technical media like MP3 files, eBooks, etc., to prevent everyone in general from making unauthorized copies. Since it is software, it cannot differentiate between unauthorized use and legitimate use for a lawful purpose and treats all kinds of uses circumventing the system as a valid cause of infringement.
However, the better provision made available against such DRM systems is that a complaint can be lodged by a group of people representing the disabled or a disabled person himself to direct the author of the copyright owner to either:
1) Clarify whether there is a licensing scheme in place, which would permit the disabled person (or people) to access the work; or
2) Make available some method of carrying out the use permitted under the disability exceptions.
In such an instance, the author of the copyrighted work is under an obligation to carry out the relevant course of action as has been directed by the appropriate authority and where the author fails to act in accordance with the same, the complainant can lawfully sue the author.
As has been noted above, people with a print disability have the fundamental right to access, at least, the cultural works for the basic purpose of education, work as well as for pleasure. The current framework does not provide very adequately for people with disabilities. However, the adoption of the Convention on the Rights of People with Disability (CRPD) suggests certain changes that should be introduced to promote international cooperation. The Marrakesh Treaty also ensures that all signatories will be obliged to introduce a minimum baseline exception that allows visually-impaired people to receive, make, and use accessible copies of works while also allowing cross-border movement of such books. For ensuring improved access, the following measures can also be adopted:
(1) Invest heavily in the digitization of existing works; and
(2) Require that publishers or retailers of works published or republished in the future deposit those works in an accessible form with a public repository.