By Apoorv K.C

There has been a perpetual conflict in the arena of Intellectual Property Rights and Human Rights. The world currently is suffering from what the experts call, ‘book famine’. Book famine is, simply speaking, the lack of accessibility of books. Book famine exists on a larger scale for the blind, visually impaired or print disabled persons.[1] According to a few estimates, less than one per cent of the literary works in the developing countries and less than ten per cent of them across the globe is accessible by visually impaired persons.[2] The Marrakesh treaty, in principle, attempted to remove this deficiency of access, i.e.: the book famine. However, even after three years of its inception, the treaty has still not been ratified by the required 20 countries and hence, its current status still remains in a limbo.

The treaty was the culmination of a long process of discussions, deliberations and compromises. A prelude to the treaty was the Convention on the Rights of Person with Disabilities, which came into force in 2008. The treaty marked a shift in approach and, for the first time, considered lack of access as a hindrance to the human rights of an individual. Article 4 of the convention obligates the States to promote the availability of new technologies to people with disabilities. To fulfil the obligations under this convention, the Marrakesh treaty was brought in. The main purpose of the treaty is to harmonise the Rights of authors in Copyright law with human right to have access. However, the path towards formulating a treaty like this was not an easy one.

Under the prevalent TRIPS regime, the limits and exceptions to copyrights are highly restricted. Under the Berne Convention[3], a three step test permits exemptions to copyright in ‘certain special cases’ that ‘do not conflict with normal exploitation of the work’ and ‘do not unreasonably prejudice the legitimate interests of the author.’[4] Hence, in the question of providing limitations to copyright for providing accessibility, two questions have to be examined:

  1. Whether the copyright owners’ market be affected and they would not be able to enjoy the rights under copyright?
  2. Whether the need to provide accessibility overweighs any harm caused to the author’s right?

Both these questions played a vital role during the formation and the delay being caused in the treaty coming to force. The Copyright owners fiercely opposed the draft treaty and argued that they would be forced to surrender their rights under the provisions of the treaty. The commercial interests of the Copyright holders could have an adverse affect, thereby failing the first test provided under the Berne Convention. The copyright holders argued that the draft treaty would fail the third test too as these exceptions would ‘create doubts about the wisdom of investing in the production of accessible versions for the market.’[5] The treaty was also opposed by publishers of Audio-visual works like Motion Picture Association of America over the long term effect such a treaty could have on Intellectual Property politics.

The biggest opposition towards the treaty was not because of its non compliance towards the earlier treaties, but the shift it creates from limited exceptions regime towards social inclusion regime, in what some media houses claimed to be a ‘bad precedent.’[6] The treaty is the first treaty in the world which mandates countries to have exceptions to the rights given under Copyright law of the countries, under Article 4(1).[7] Article 4(2) further mandates the countries to allow anyone to make an accessible format copy of the work, provided the conditions specified therein are fulfilled.[8] Article 5 mandates states to allow for cross border exchange of accessible format copies and Article 6 mandates for allowing import of accessible format copies, without the license or authorisation from the author.[9]

Though the provisions of the treaty are commendable, the treaty has not been adopted universally as the Copyright- Accessibility debate still continues. However, with time, thw treaty is being taken more seriously by nations. Israel has made laws in compliance with the treaty, though it wasn’t one of the signatories to it.[10] India was the first country to ratify the treaty in 2014 and had already introduced an amendment in 2012 to the Copyright Act, 1957. Section 52(zb) of the Copyright Act permits the conversion of work in an accessible format as an exemption to the general rule of Copyright infringement. There has also been a plan to enhance the National Digital Library and to provide e-books for school curricula.[11] However, there is a lot which needs to be done. Providing accessibility for books finds a small mention in Sugamya Bharat Abhiyan. Also, the implementation of the new National Education Policy, where technology has a big role to play, could be instrumental in improving accessibility.[12]

[1] A print-disabled person is a person who cannot effectively read print because of a visual, physical, perceptual, developmental, cognitive, or learning disability. – See more at: http://slq.nu/?article=volume-47-no-4-2014-7#sthash.5Slq5knR.dpuf. [2] Accessible Books Consortium Launched, Joins Effort to End “Book Famine” for People with Print Disabilities, World Intellectual Property Organisation, (June 30, 2014), available at http://www.wipo.int/pressroom/en/articles/2014/article_0009.html [3] Berne Convention for the Protection of Literary and Artistic Works art. 9(2), Sep. 9, 1886. [4] id. [5] Allan Adler, Association of American Publishers Inc, Reply Comments to US Copyright Office, Facilitating Access to Copyrighted Works for the Blind or Other Persons With Disabilities: Notice of Inquiry and Request for Comments, 4 December 2009, 6 ,http://www.copyright.gov/docs/sccr/comments/2009/reply-2/19-allan-adler.pdf. [6] P Harpur, N Suzor, Copyright Protections and Disability Rights: Turning the Page to a New International Paradigm, (2013) 36 (3), University of New South Wales Law Journal. [7] Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled art. 4, June 27, 2013, TRT/MARRAKESH/001. [8] id. [9] id. at art. 5-6. [10] Law for Making Works, Performances and Broadcasts Accessible for Persons with Disabilities (Law Amendments) No 5774-2014 (enacted 19 March 2014) (Israel). See more at: http://www.iposgoode.ca/2015/11/copyright-disability-and-social-inclusion-the-marrakesh-treaty-and-the-role-of-non-signatories/#sthash.rpfb8oce.dpuf. [11] Surabhi Agarwal, Govt proposes digital e-book versions of school syllabi, Business Standard (Nov. 18, 2014) http://www.business-standard.com/article/economy-policy/govt-project-to-convert-school-texts-into-e-books-114111700029_1.html [12] New Economic Policy, available at http://mhrd.gov.in/nep-new

Image source: Photo by Andrew Draper on Unsplash. Available at https://unsplash.com/photos/ZjJd4jXN_G0