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.
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:
Country-Wise Exceptions
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 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.
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:
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:
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.
Concluding Remarks
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.
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