Source: LEGISLATION
Copyright concerns V.VENKATESAN in New Delhi The proposed amendment to the Copyright Act, 1957, suffers from a lack of empathy with the differently abled. K. RAMESH BABU A visually-challenged child reading the Braille version of a book. COPYRIGHT is an exclusive right given by law for a certain number of years to an author or creator of literary or artistic production to print, publish and sell copies of his or her original work. Publishers see it as a simple mechanism provided for the protection of rights of authors. According to this arrangement, an author owns his/her creations and therefore he/she must be free to control them. However, the interests of users of copyright cannot be neglected; experts have pointed out that the public interest and development of arts and science also form the rationale for the system of copyright. Indeed, the system of copyright in India is not for commercialisation of works but for achieving a balance of the interests of all stakeholders – publishers, authors and users. The Copyright (Amendment) Bill, 2010, which is intended to amend the Copyright Act, 1957, was introduced in the Rajya Sabha on April 19. It is an instance of legislation that is likely to favour one stakeholder disproportionately at the expense of others because of the shoddy manner in which it is drafted. The Statement of Objects and Reasons of the Bill says the Copyright Act, 1957, is proposed to be amended for clarity – to remove operational difficulties and also to address certain issues that have emerged in the context of digital technologies and the Internet. The two World Intellectual Property Organisation (WIPO) Internet Treaties, namely, the WIPO Copyright Treaty (WCT), 1996, and the WIPO Performances and Phonograms Treaty (WPPT), 1996, have set the international standards in these spheres. The WCT and the WPPT were negotiated in 1996 to address the challenges posed to the protection of copyrights and related rights by digital technology, particularly with regard to dissemination of protected material over digital networks such as the Internet. The member-countries of WIPO agreed on the utility of having Internet treaties in the changed global technical situation and adopted them by consensus. In order to extend the protection of copyrighted material in India over digital networks such as the Internet and other computer networks in respect of literary, dramatic, musical and artistic works, cinematograph films and sound recordings of works of performers, the government proposed to amend the Act so that it harmonises with the provisions of the two WIPO Internet treaties, to the extent considered necessary and desirable. The WCT deals with copyright protection for the authors of literary and artistic works such as writings, computer programs, original databases, musical works, audiovisual works, works of fine art and photographs. The WPPT protects certain “related rights” which are the rights of performers and producers of phonograms. Although India has not yet signed these two treaties, its voluntary decision to make its domestic laws comply with these treaty provisions is seen as a demonstration of its respect for international law and institutions. The Bill declares that amendments to the Act were necessary because in the knowledge society in which we live today, it is imperative to encourage creativity for the promotion of the culture of enterprise and innovation. However, a close look at two proposed amendments in the Act shows that this avowed purpose is influenced by the concerns of one stakeholder only, that is, publishers. These amendments seek to allow persons with disabilities to access copyright material in specialised formats. Exceptions In particular, the Bill seeks to amend Section 52 of the Act, which provides certain exceptions which are not to be construed as infringement of copyright. Legally, the use of a copyrighted work by any person other than the owner of the copyright is an infringement. The Act recognises certain acts which, though done by a person other than the owner of copyright, would not amount to infringement. At present, there are as many as 30 specific exceptions listed under Section 52(1). The Act allows reproduction of a copyrighted work for “private use, including research” under Section 52(1) (a) (i). Such an exception does not make provision for printed works to be converted into accessible formats on a large scale for purposes other than research, including recreational purposes or use in the normal course of any work by print-impaired individuals on a par with persons without such impairment. A book or a novel published on a commercial scale cannot be converted into an accessible format for the use of persons with print impairment under this exception. Moreover, this exception does not cover a whole book and only allows the use of small portions of the book, even if it is for research or for educational purposes. Section 52(1)(h) allows for the reproduction of a copyrighted work by a teacher or a pupil “in the course of instruction”. The scope of the term “in the course of instruction” is ambiguous. Further, it does not allow for reproduction in all formats accessible by print-impaired pupils, including Braille, large text, e-text and talking books. It does not allow intermediary organisations, such as not-for-profit organisations working for providing access to print-impaired persons, to convert copyrighted works. There are other concerns as well. The Act does not provide for the import of already converted copies of copyrighted works from other countries. This adds an additional burden of converting works that have already been converted and amounts to duplication of work and unnecessary expense. According to an estimate, almost 7 per cent of India’s population is print-impaired. It is important that this section is able to exercise fully and freely its right to the freedom of speech and expression, right to information, right to read and write, right to education, and, most critically, right to live with dignity. Even as these concerns remain unaddressed, two provisions of the Bill have dismayed activist groups striving to promote the interests of differently abled persons. The Bill seeks to insert Section 52 (1) (zb) which reads 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 work in their normal format.” Activists associated with the National Access Alliance, a coalition of non-governmental organisations (NGOs) representing differently abled persons, have expressed extreme dissatisfaction with the drafting of this provision. According to them, the exception only permits conversion of printed material to “specially designed” formats such as Braille and sign language and does not benefit millions of persons affected by cerebral palsy, dyslexia and low vision and the millions of visually challenged persons who do not know Braille and who require mainstream formats such as audio, reading material with large fonts and electronic texts. Further, even regular Braille users complement Braille with other mainstream formats. Given that audio, reading material with large fonts and electronic texts are mainstream formats and not “specially designed” formats aimed at persons with disabilities, the proposed exception excludes them. Activists also point out that in modern-day Braille production, the material has to be first converted into mainstream electronic formats such as Microsoft Word because Braille translation software requires input in such formats. Therefore, they say that the exception in favour of “specially designed” formats is entirely limiting and counterproductive. Activists have also expressed other concerns. Section 31 of the Act deals with the grant of compulsory licence to a complainant in works withheld from the public by the owner of a copyright on unreasonable grounds. Section 31A deals with grant of compulsory licence in unpublished Indian works, where the copyright owner is either dead or untraceable. For conversion to non-specialised formats, the Bill proposes to insert a new provision – Section 31B – for introducing a licensing system that will permit only organisations working primarily for the benefit of the disabled to undertake conversion and distribution. The activists are apprehensive that this proposed provision, if enacted, will prevent educational institutions, self-help groups, NGOs and print-disabled individuals themselves from undertaking conversion and distribution. The licensing system, they fear, will also require approaching the Copyright Board with regard to each work. This will be extremely time-consuming and cumbersome. They apprehend that the waiting period for obtaining permissions and subsequent conversion will result in students losing academic years and amount to a clear violation of their right to education. The Copyright Board, under this proposed provision, has to dispose of an application from such an organisation within a period ! of two months. These two provisions, the activists claim, violate the constitutional guarantee of equality under Article 14 since it discriminates between those visually challenged persons who know Braille and those print-disabled persons who do not. Even otherwise, by failing to institute a meaningful copyright exception that would enable access to educational material by the print-disabled, the state has failed in its duty to guarantee a meaningful right to life guaranteed under Article 21 of the Constitution, they allege. A study by the National Access Alliance (NAA) has found that over 50 countries around the world have copyright exceptions for the benefit of persons with disabilities. In about half these countries, there are no limitations on who may undertake the permitted activity and about 20 countries, including Australia, France and Germany, permit conversion to non-specialised formats. The NAA has suggested that amendment to Section 52 should be format neutral. Every day new formats are created and specifying the format will mean that persons with disability will not be able to use emerging technologies for their benefit, says Rahul Cherian of Inclusive Planet, Chennai, one of the NGOs that constitute the NAA. The activists say they met Human Resource Development Minister Kapil Sibal in November last year and conveyed their concerns over the draft Bill. Sibal, according to them, assured them that their concerns would be taken care of. However, the activists found to their dismay that the HRD Minister chose to keep not only Section 52(1) (zb) as it was drafted, but inserted Section 31B into the draft when he introduced it as a Bill in the Rajya Sabha. Publishers’ lobby The activists allege that the HRD Ministry is reluctant to withdraw these amendments, under pressure from the publishers’ lobby. The publishers, the activists claim, are opposed to widening exceptions under Section 52 because they believe that the Ministry might come under pressure to include exceptions for educational purposes at a later point of time. Many domestic intellectual property rights regimes create exceptions and limitations on copyright used in the educational sector. The controversial drafting of the Bill has given rise to misgivings that the HRD Ministry perhaps subscribes to the publishers’ perspective on copyright, ignoring the interests of copyright users. An exception to the reproduction right of a copyright owner for the benefit of print-impaired persons is undoubtedly in the public interest and in furtherance of the cause of dissemination of information. It is important that such an exception satisfies its beneficiaries. India ratified the United Nations Convention on Rights of Persons with Disabilities on October 1, 2007. Article 30(3) of this Convention says, “State parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials.” Indian courts have held that international conventions that India has ratified can be read into Indian law even without express legislation. With the controversial Bill having been referred to a Standing Committee of Parliament for its consideration, the HRD Ministry should use this opportunity to review the Bill in the light of concerns expressed by the activists. Copyright: 1995 - 2006 The Hindu Republication or redissemination of the contents of this screen are expressly prohibited without the consent of The Hindu To unsubscribe send a message to [email protected] with the subject unsubscribe. 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