There are over 2.2 billion people blind or visually impaired worldwide, and about 90% of them live in developing or least developed countries. Considering their economic situation and available infrastructure, education and access to the literature are significant issues. Only less than 10% of books published every year are available in a format accessible to them.
Without access to books and magazines, the visually impaired cannot receive the required education or realise their full potential. With a single objective to increase access to books, magazines, and other printed materials for people with print disabilities, the Marrakesh Treaty was adopted by the member states of WIPO in 2013 (the “Treaty”), which also forms part of the body of international copyright treaties administered by WIPO.
How did the Marrakesh Treaty Eventuate?
In 2006, the WIPO Standing Committee on Copyright and Related Rights’ Study on Copyright Limitations and Exceptions for the Visually Impaired, led by Judith Sullivan, set the ball rolling for copyright exceptions for the benefit of the visually impaired. This move prompted many states to make exceptions to their copyright law.
Following that, a proposal for the Treaty was first tabled before the WIPO by Brazil, Ecuador, and Paraguay for the World Blind Union (WBU) during WIPO’s 18th Standing Committee on Copyright and Related Rights (SCCR) in 2009. The proposed Treaty set forth minimum standards of copyright exceptions and facilitated the cross-border exchange of accessible formats. Consequently, the Forty-Second WIPO General Assembly decided to convene a Diplomatic Conference on limitations and exceptions for visually impaired persons/persons with print disabilities in June 2013.
The Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities, was held from 17th to 28th June 2013 in Marrakesh, Morocco, which adopted the Treaty on 27th June 2013. The Treaty aligns with the human rights principles in the Universal Declaration of Human Rights (UDHR) and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
India became the first country to ratify the Treaty on 24th July 2014. The Treaty received 79 signatures in the first twelve months that it was open for signatures, and it entered into force on 30th September 2016 currently with 80 Contracting Parties on board.
Salient Features of the Marrakesh Treaty
Definitions Under the Marrakesh Treaty:
“Works” are defined to mean literary and artistic works within the meaning of Article 2(1) of the Berne Convention for the Protection of Literary and Artistic Works.
“Beneficiary Persons” is defined as someone affected by one or more in a range of disabilities that interfere with the effective reading of printed material. This definition includes visually impaired persons and those with a physical disability that prevents them from holding and manipulating a book.
The definition of “Accessible format copy” is broad and covers any format that permits a person with a visual impairment or other print disability to access the content as feasibly and comfortably as a person without such a disability, including digital formats. The accessible format copy is used exclusively by beneficiary persons. It must respect the integrity of the original work, taking due consideration the changes needed to make the work accessible in the alternative format and the accessibility needs of the beneficiary persons.
“Authorised entity” is defined as an entity authorized or recognized by the government to provide education, instructional training, etc., to beneficiary persons on a non-profit basis. It also includes a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations.
Obligations of the Member Countries Under the Marrakesh Treaty:
Article 4 of the Treaty refers to the obligation of the contracting parties to fulfill two primary obligations, i.e.:
- Contracting Parties shall 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); and
- To facilitate the availability of works in accessible format copies for beneficiary persons.
These limitations and exceptions mean that a range of acts is permitted without infringing copyright.
Article 5 highlights the obligation about the Cross-Border Exchange of Accessible Format Copies. As per this article, all contracting Parties shall have a necessary provision in their Statutes wherein if an accessible format copy is made under a limitation or exception or according to the operation of law, that accessible format copy may be distributed or made available by an authorized entity to a beneficiary person or an authorized entity in another Contracting Party.
Application of the Marrakesh Treaty in India
The Copyright Act (Amendment) Act 2012, which was enacted in India much before the Treaty was adopted, had already incorporated a provision which grants the exception of fair dealing with the reproduction, distribution, and making available of published works in accessible formats for the disabled.
The 2012 Amendment of Fair Dealing Exception
The Copyright (Amendment) Act, 2012 provides certain exceptions to copyright infringement as fair dealing under Section 52. The provision permits limited use of copyright material without the owner’s authorization.
The Copyright (Amendment) Act, 2012 brought a new provision under Section 52(1) (ZB), which made conversions of work into an accessible format for the exclusive benefit of disabled persons a fair dealing exception to the infringement of copyright. This extends to the adaptation, reproduction, issue of copies, or communication to the public of any work in an accessible format for persons with disabilities, by any person or organisation working for the benefit of the persons with disabilities.
Section [(zb) 52] highlights that the; adaptation, reproduction, issue of copies or communication to the public of any work in an accessible format, by:
(i) any person to facilitate persons with disability to access to works including sharing with any person with disability of such accessible format for private or personal use, educational purpose or research; or
(ii) any organisation working for the benefit of the persons with disabilities in case the standard format prevents the enjoyment of such works by such persons:
Provided that the copies of the works in such accessible format are made available to the persons with disabilities on a non-profit basis but to recover only the cost of production. Provided further, the organization shall ensure that the copies of works in such accessible format are used only by persons with disabilities and take reasonable steps to prevent entry into ordinary business channels.
Recommendations of Parliamentary Standing Committee on Commerce
The Parliamentary Standing Committee (“Committee”) constituted under the Dept of Commerce, inter alia, examined the challenges faced in ensuring a balance between copyright protection of the publishers and public access to affordable educational study material in its recent report titled “Report 161: Review of the Intellectual Property Rights Regime in India” presented in the Rajya Sabha on 23rd July 2021.
The Committee observed that the fair use exception is having a detrimental impact on the publishing industry and authors who are mainly dependent on royalties. On the other hand, it also observed that protection of copyrights of publishers and authors which encourages enrichment of quality books and public accessibility of such works at an affordable rate counterbalanced to maintain the overall literary culture and image of the country. Hence, in order to overcome this conflict, the Committee made the following recommendation:
- Section 52(1) of the Copyright Act, 1957 should be amended to facilitate a fair and equitable ecosystem of literary culture in the country by allowing reprographic works in Government-owned educational institutions and storing it in libraries for their easy access to students as well as stipulating limitations to unrestricted commercial grants to copy books and literary works and storage of copied works in digital formats.
- Libraries should be upgraded to provide easy access to the works of foreign publishers by the students
- The earliest implementation of National Mission on Libraries (NML), a Government of India initiative to modernize and digitally link close to 9,000 public libraries across the country works.
- A comprehensive study of the Berne Convention provisions regarding Protection of Literary and Artistic Works to promote a regime of copyright which will be of advantage to both copyright holders and the public.
Compulsory License to Reproduce Published Work for the Benefit of Disabled for Profit
In addition to the fair dealing exceptions, the Amendment also provides for Compulsory Licensing to any person working for the benefit of the disabled to publish any work on which copyright exists.
Considering the more significant public interest involved in the license proceedings, the Act mandates that Courts shall make necessary endeavors to dispose of such applications within two months from the date of receipt of the application.
Reproduction and Cross-border Exchange of Published Works
In line with the Treaty’s commitment to make accessible format works available to the beneficiaries across the boundaries, WIPO in June 2014 established the Accessible Books Consortium (“Consortium”). This public-private collaboration brings together all the key players, including the organisers, beneficiaries, publishers, and authors. It is a multiparty collaboration that offers books in an accessible format to blind and prints disabled people across the globe.
As of now, the Consortium holds over six lakhs books in accessible formats in over 80 languages in 93 partnered libraries that are available without legal formalities to the beneficiaries and organisations that assist such people. The Treaty also allows unlocking of Digital Rights Management Amazon Kindle (DRM) book, which can then be reproduced in Braille format and made available to the beneficiaries without the prior consent of the copyright holders.
In India, the Consortium initially covered two states, i.e., Bihar and Madhya Pradesh, by providing support of converting books from standard IX to XII in accessible formats and offering reading assistant devices at a subsidised cost.
The India chapter started with the Daisy Forum of India (“DFI”), which in collaboration with Tata Consultancy Services (TCS), National Institute for Empowerment of Persons with Visual Disabilities (NIEPVD), and the Government of India; launched Sugamya Pustakalaya, India’s first and most significant collection of accessible books hosting over 6.75 lakhs in accessible formats across in as many as 17 languages across DFI libraries.
Since then, multiple NGOs, libraries, Online databases, software programmes have been established. Saksham Trust, a Delhi-based NGO working for the exact cause, is another such organisation. Also, various reading softwares have been developed, such as the INDO-NVDA software, making computers accessible for visually impaired people.
While India has one of the most progressive copyright exceptions for the benefit of the disabled globally, it is pertinent to note that India hasn’t fully incorporated provisions of the Treaty in her national law. Provisions related to cross-border availability, privacy, and cooperation remain absent. To achieve the objective of the Treaty, it is pertinent that all Contracting Parties comply with their obligations to foster an accessible environment for the disabled.
While India has one of the most progressive copyright exceptions for the benefit of the disabled globally, it is pertinent to note that India hasn’t fully incorporated provisions of the Treaty in her national law. Provisions related to cross-border availability, privacy, and cooperation remain absent.