The proposed accessibility exception to copyright

A large proportion of all printed material is protected by copyright law, which grants copyright owners certain exclusive rights with respect to such material. For the most part, printed materials remain inaccessible to persons with disabilities - not just for socio-economic reasons, but also because of legal impediments such as copyright.

Proposed amendment 
Although the Indian Copyright Act 1957 includes a large number of exceptions to copyright infringement, and recognises the fair use doctrine, it contains no explicit provisions making copyrighted works accessible to disabled persons. The Copyright (Amendment) Bill 2010 proposes to change this situation by inserting:

• An additional exception for the benefit of persons with disabilities.
• A compulsory licensing provision which would apply in situations which fell beyond the scope of the exception.

The proposed exception would appear in Section 52(1)(zb) and would state as follows: "The adaptation, reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in their normal format."

According to the proposed amendment, disabled persons do not simply have disabilities - they are "persons suffering" from disabilities; and formats in which copyrighted works are made available for able-bodied persons (who comprise the majority of the population) are not merely the original formats, but rather the "normal" formats of those works. However, quite apart from containing language biased towards able-bodied persons, the proposed amendment also raises the substantive concern that it may not serve the needs of either copyright owners or disabled persons as best it could.

Protection for copyright owners
Under the proposed exception, the reproduction, issue of copies or communication to the public of a copyrighted work would be legal if it were in a format specially designed only for the use of persons with a disability, regardless of whether the copyright holder had already made the work available in that format. Ideally, for the protection of rights holders, the exception should apply only to works which have not been made available by rights holders themselves in the necessary accessible formats (at a reasonable price and without undue effort having to be expended in order to obtain the works in such formats).

Further, the accessibility exception contains no provision stating that it would apply only to non-commercial endeavours to make copies of works in accessible formats available to disabled persons. It is conceivable that such a requirement would, in a country like India, simply restrict the applicability of the exception to an appreciable extent. In addition, if the proposed amendment were to be modified along the lines mentioned in the previous paragraph, it would completely obviate the need for a provision regarding non-commercial use, since the rights of copyright owners would be adequately protected. 

Requirements of disabled persons
The proposed amendment requires the accessible format to have been specially designed for the exclusive use of persons suffering from a disability (eg, Braille). This would immediately preclude formats not specially designed only for disabled persons from falling within the scope of the accessibility exception. Since many of the formats from which disabled persons would benefit are specially designed for them (whether large-print photocopies for visually impaired persons or photocopies on coloured paper for dyslexic persons), in a way this requirement would defeat the aim of attempting to ensure that disabled persons can access copyrighted works.

Moreover, the requirement that a disabled person be prevented from enjoying the work in its original format significantly narrows the scope of the proposed amendment, since it means that certain activities would not fall under the exception. If a disabled person were to enjoy a copyrightable work to any extent at all, the provisions of the exception would not apply, since the person would not be considered to have been unable to enjoy the work or to have been prevented from doing so on account of his or her disability. The corollary to this is that a format of work which would merely enhance a disabled person’s ability to access and enjoy a work (eg, a large-print photocopy) may not fall under the scope of this exception, since the disabled person may not have been prevented from enjoying the work in its original format.

With reference to the accessible formats themselves, the insertion of sign language as an example of an accessible format gives rise to concerns. It would have been worth specifying that an accessible format contemplated by the provision could be any format, no matter whether it was substantially the same as the original format. Such a revision would be welcome, since it is entirely conceivable that in future, it could be argued that the law never intended for minor changes in formats such as the making of photocopies to be included within the scope of the exception, considering that the sole format mentioned would in most cases be a substantial change, and that it betrays the legislative intent to include only substantial changes of format within the scope of the exception.

As such, the exception would not apply in a number of circumstances. In those circumstances, the proposed compulsory licence under Section 31B would apply. 

Compulsory licence
Under the proposed compulsory licence provision, certain organisations which satisfied stringent criteria could apply for a compulsory licence to print copyrighted materials in accessible formats. However, the primary problem with this proposed provision is that persons with disabilities cannot themselves apply for licences; and considering that an applicant must be an organisation working primarily for the benefit of persons with disabilities, registered under both Section 12A of the Income Tax Act 1961 and Chapter X of the Persons with Disabilities Act 1995, few organisations would satisfy the eligibility criteria.

Conclusion
The shortcomings of the proposed amendments for persons with disabilities were highlighted in representations made before the Parliamentary Standing Committee. Taking note of the representations, in its report the committee suggested that the proposed provisions be revised.