India: India Becomes Signatory To The Marrakesh Treaty For Visually Impaired

Last Updated: 19 June 2014

Article by Vaibhavi Pandey and Neha Chouhan1

"The problem for blind people is not the disability but the availability" 2

Introduction:

As per the WHO's 2012 data there are around 285 million visually impaired people around the world. Considering this huge percentage of world's population as visually impaired, it has been always a concern of the Nations to bring them on the same footing as a general human being and provide them with the basic amenities of life. Since the beginning, Copyright has been considered as an obstacle to the handicapped persons. Usually, a visually impaired person reads a book in different formats like Brail, audio, text to speech software, podcasts, talking books etc. But there exists a very few percentage of books which are translated and made available to visually impaired people in formats that are accessible by them. Further, an act of translating or converting a book into these formats may also constitute copyright infringement under various jurisdictions. Therefore, the need for a legislation to tackle this issue was highly felt. The Marrakesh Treaty was concluded on 27 June, 2013 in Marrakesh, Morocco by a Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities.

This treaty has been signed by India on 30 April 2014 along with three other members of World Intellectual Property Organization (WIPO) namely France, Greece and European Union. Now, out of WIPO's total 187 members, the signatories are 64. This WIPO administered treaty is the treaty signed by the largest number of countries upon adoption.

Till date, none of the states has ratified the treaty. For this treaty to come into effect, ratification or accession of at least 20 states is necessary. The treaty would be affected after three months of such ratification. According to Mr. G.R. Raghavender, Registrar of Copyrights, the ratification of this treaty by India is expected to take place in the end of the month of May.

It is anticipated that this treaty is a breakthrough which would solve the problem of 'Book Famine' which is faced all over the world. Book Famine is basically the scarcity of the reading material for the blind people. In fact, the Moroccan Minister of Communications Mustapha Khalfi, described it as the 'Miracle in Marrakesh'. This treaty is estimated to remove the constraint to access books by the handicapped people. It would assure that the work of the publishers and authors is not misused and distributed to the intended beneficiaries.

There are about 39 million people across the globe that are blind, out of these India is a home to about 15 million of them. If we include the partially sighted ones and persons with other visual disabilities, then it would make it to be around 285 million persons, according to the reports of the World Blind Union. India has a large number of people of the blind community. Thus, for obvious reasons this treaty has even a greater importance in India. This treaty would make efforts to advance accessibility and gain greater access to books and literature in Braille technique, larger print or audio. In 1982, UNESCO and WIPO created a Working Group on Access by the visually and Auditory Handicapped to Material Reproducing Works Protected by Copyright. This was in pursuance to the decision taken by the respective Governing Bodies of UNESCO and WIPO and the recommendation made by the Executive Committee of the Berne Union and the Intergovernmental Committee of the Universal Copyright Convention at their November-December 1981 sessions. Then in 2000, the World Blind Union came into picture. It took several initiatives which also included providing the accessible reading materials to the blind community. Then, finally in June 2013 the 'Draft Text of an International Treaty on Limitations and Exceptions for Visually Impaired Persons/Persons with Print Disabilities' was concluded in Marrakesh, Morocco. The Preamble to the treaty recognizes the principles of equal opportunity, non-discrimination, accessibility and full and effective participation and inclusion in society. This treaty tries to lay down a balance between human rights and Intellectual Property Rights.

Article 2 of the draft lays down some important definitions:

(a) "works" means literary and artistic works within the meaning of Article 2(1) of the Berne Convention, for the Protection of Literary and Artistic Works, in the form of text, notation and/or related illustrations, whether published or otherwise made publicly available in any media.

(b) "accessible format copy", means a copy of a work in an alternative manner or form which gives a beneficiary person access to the work, including to permit the person to have access as feasibly and comfortably as a person without visual impairment or other print disability.

(c) "authorized entity", means an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis.

The Treaty clarifies that the beneficiary persons are those affected by a range of disabilities that interfere with the effective reading of printed material. There is a broad definition which includes people who are blind, visually impaired, or reading disabled or persons with a physical disability that prevents them from holding and manipulating a book.3 The countries are also required to provide in their national copyright laws for a limitation or exception to the right of reproduction, the right of distribution, and the right of making available to the public as provided by the WIPO Copyright Treaty (WCT), to facilitate the availability of works in accessible format copies for beneficiary persons.4 They may also provide an exception or a limitation to right of public performance for access under this treaty.

This treaty even provides for the cross border exchange of accessible format copies in which the accessible format copies are to be distributed or made available by an authorized entity to a beneficiary person or an authorized entity in another Contracting Party.5 The parties should allow the import and export of accessible format copies under certain conditions.6 The state parties even have obligations related to technological measures. They are supposed to ensure that they provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures.7

The parties are also required to support the privacy of the beneficiary persons.8 This treaty delegates the administrative tasks concerning this treaty to the International Bureau of WIPO.9 The Treaty establishes an Assembly of the Contracting Parties whose main task is to address matters concerning the maintenance and development of the Treaty. It also entrusts to the Secretariat of WIPO the administrative tasks concerning the Treaty.10

According to Ms. Veena Ish, Joint Secretary, Ministry of Human Resource Development (MHRD), "India's Copyright Amendments which came into effect on June, 2012, are already in complete harmony with the Marrakesh Treaty, thus putting India in a good position to implement the treaty. She also stated that India will be ratifying this treaty 'very soon'."

The Copyrights Act 1957 was amended in 2012 after realizing the need to broaden the ambit of several provisions. Section 52 (1) (zb) of the Copyrights Amendment Act, 2012 allows any person to facilitate access by persons with disabilities to copyrighted works without any payment of compensation to the copyright holder, and any organization working the benefit of persons with disabilities to do so as long as it is done on a non-profit basis and with reasonable steps being taken to prevent entry of reproductions of the copyrighted work into the mainstream. The scope of this section has been greatly broadened in benefit of the visually disabled. Section 52 (1) (zb) previously dealt with the formats that were "special designed only for the use of persons suffering from visual, aural, or other disabilities". It is interesting to note that this amendment was made just before the Marrakesh treaty. Hence, India's Copyright Act has been in consonance with the treaty.

Conclusion:

This treaty would surely turn out to be a milestone towards the benefit of the blind and the visually impaired community. It would provide them with the access to culture and education. In the developing countries, where the majority of the blind community lives, the ratification of this treaty would transform lives. It is hoped that this treaty would create life changing opportunities.

Footnotes

1. 3rd Year Student, GNLU.

2. http://www.euroblind.org/

3. Article 3 of Marrakesh Treaty

4. Article 4

5. Article 5

6. Article 6

7. Article 7

8. Article 8

9. Article 14

10. Article 13

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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