India: Right To Read: Marrakesh Treaty & Access To Knowledge

Last Updated: 21 September 2015
Article by Divya Srinivasan

Keeping conformity with the essential goals of equal opportunity, non-discrimination, access, thorough individual progress, actual and comprehensive involvement in society, the Marrakesh Treaty to Facilitate Access to Publish Works for Persons who are Blind, Visually Impaired or otherwise Print Disabled (hereinafter, the Treaty) truly stabilizes human rights and intellectual property rights (IPR), which was approved by representatives from World Intellectual Property Organization's (WIPO) 186 member states including India on June 27, 2013.1 This Treaty guarantees visually impaired people speedier access to books and bolsters the solution to "book famine" by calling for the contracting parties to implement domestic law provisions permitting reproduction, distribution and making available of published works in accessible formats, such as Braille, with certain limitations and exceptions to the rights of copyright right holders.

India being a developing nation does not have access to many books, due to price and stringent intellectual property laws of respective countries. By way of this treaty, works across borders could be accessed and exchanged by organizations which serve the needs of the visually impaired, blind, and the print disabled thereby ensuring harmonization with regard to the limitations and exceptions so as to enable operation of such organisation trans-border as well as increase overall number of works which are available, hence eliminating replication and help in escalating proficiency.

The Marrakesh Treaty

This Treaty is unique owing to its management of international copyright relations, which is a grappling issue. The adoption of the WIPO Internet Treaties, i.e. the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) were more or less hinged on poorly constructed foundations. They did not provide for a balance of interest, focussed only on protection, did not provide for prerequisites with respect to recognizing important private and public interests, to name a few, thereby posing as hindrances to access to works. Although ratification is a start but the head start can only be fully achieved when it is optimally exploited to gain authentic benefits.

Some important provisions of the treaty are as discussed; Article 2 of the treaty is applicable to both literary and artistic works. Further a copy of a work in an alternative manner or form in order to enable people with visual impairments to have access to these works as feasibly and comfortably as a person without visual impairments or print disabilities is provided under 'accessible format copy'. This is a welcoming provision but as per the policy of the US and EU with regard to digital locks as well as translation rights, it can pose as a hurdle for the realization of access and availability of such formats. Therefore, though the law requires books to be made available easily, technology and market choices by the US and EU may encumber 'feasible and comfortable' access to such formats. Furthermore ratified entities can make use of technological procedures and states. Additionally the same has to be in accordance with national laws. The inclusion of 'print disabled' as a beneficiary, including the blind and the visually impaired is a major improvement, in lieu of the non-discrimination and equal opportunity provided to these people. A, print disabled is a person who cannot access print owing to certain visual, physical or cognitive impairment; a person without arms, cannot turn pages of a printed book and is hence print disabled despite his vision being fine, as enshrined under Article 3. The treaty permits the copyright owner, or someone acting on his behalf, or any authorized entity to make an accessible format copy of a work without copyright holder's authorization. Also, it is mandated by the treaty that such copies are to be shared only with the 'beneficiaries' thereby made from lawfully obtained copies, although much is yet to be said about what lawfully obtained explicitly means. As per the Indian Copyright Law, the differently abled persons as well as not-for-profits working for the differently-abled will be allowed to convert works into accessible formats devoid of authorization from the right holder. This was inserted into the Act, under Article 4.2 as given under the Treaty.

As stated earlier, the main intention of the Treaty is to provide for the cross border exchange of copyrighted works in accessible formats. Since the world consists of nations that are technologically sound and developed as well as the nations that are not so technologically developed. The former, having the obvious advantage possess the capability to convert the works into various formats, which on the other hand is a time taking capability for the latter to muster and gain. Hence the treaty tries to unencumber the technological gap between the nations and enables easy access to converted works across borders hence being a giant leap for ensuring access. The only issue arises in the fact that the text of the Treaty uses the word 'may' thereby giving an impression that this particular provision, as given in Article 5, is non-obligatory, hence giving the US and the EU the window to take advantage of such language.

Further the provisions from Articles 9 to 14 enshrine the delegation of administrative functions to the International Bureau of WIPO, which helps in facilitating cross border exchange of accessible formats by way of encouraging voluntary sharing of information in order to enable the identification of authorized entities with each other. Moreover, an Assembly to maintain and develop the Treaty has also been created. Each Contracting State is represented by one delegate in the Assembly, having one vote.

Conclusion

It is estimated that India shoulders the largest burden of global blindness; of the 37 million people across the globe who are blind, over 15 million are from India.2 In order to deal with existential deficit, an amendment to the Indian Copyright Act was introduced vide the Copyright Amendment Act, 2012. Under the same, Section 52 which deals exclusively with the fair use/fair dealings provision, that is, the acts that would not amount to copyright infringement, contained the added provision Section 52 (1) (zb). It permits the conversion of a work into any accessible format exclusively for the benefit of differently abled people. Although this amendment was introduced much before the Marrakesh Treaty coming into picture, it may have been upheld to be a beacon for other countries during the Marrakesh Conference held at Morocco.

The treaty also allows for the unlocking of digital locks on e-books for the visually impaired to gain from. In other words, an Amazon Kindle book or iBook with digital rights management (DRM)3 could now be unlocked and printed in Braille without consultation from the right holder(s). At present, 182 countries have signed the treaty making it the treaty with the largest number of countries to ever sign a WIPO-administration treaty upon adoption.4 This treaty has the potential to transmute the impaired visions of many into reality. The need of the hour is to implement these measures thereby making the benefits of the treaty certain in the lives of visually impaired. Only then, can all the objectives laid in the preamble of the treaty which includes providing of growing opportunities for visually impaired persons to partake in the cultural life of their community as being fully recognized.

Footnotes

1. Marrakesh Treaty, Contracting Parties, Available at: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=843. Last accessed Sept. 5, 2015.

2/ Manisha Bansode, Shivani Jadhav & Anjali Kashyap, Voice Recognition and Voice Navigation for Blind using GPS, Vol. 3 (4), Intl J. of Innovative Research in Electrical, Electronics, Instrumentation & Ctrl Eng., Apr. 2015, Available at: http://www.ijireeice.com/upload/2015/april-15/IJIREEICE%2020.pdf. Last accessed Sept. 5, 2015.

3. 'Digital rights management (DRM) is a systematic approach to copyright protection for the digital media, with the aim of preventing unlawful reallocation or redistribution of digital media, thereby restricting the ways by which consumers can copy content they've purchased', TechTarget, Available at: http://searchcio.techtarget.com/definition/digital-rights-management. Last accessed Sept. 5, 2015.

4. Id, at 1.

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