limitations and exceptions for the visually impaired-...

Limitations and Exceptions forthe visually impaired

in Copyright Lawand miscellaneous exceptions too

National Seminar on Limitations and Exceptions in Copyright LawCUSAT, Kochi

Thursday, 02 July 2009Madhukar Sinha

ProfessorCentre for WTO Studies

Indian Institute of Foreign [email protected]

2001 Census2.13% of all Indians with disability

48.54% of Indians with disability suffer some measure of visual impairment

1.03 crore Indians suffer visual impairment

Some say this figure is a gross understatement

NSS 57th Round of July-December 2002Illiteracy among the disabled 55%

Among the visually impaired 74-77%

Unemployment 74%

Even more for the visually impaired

No data readily available for major reasons these figuresConceivably “Access” to be the major issue

Some statistics

Thursday, July 02, 2009 2

Societal aspirations regarding persons with visual impairmentConstitution

Right to equalityEquality of Status and opportunity promised in the Preamble

Right to EducationCommitments made internationally

United Nations’ Universal Declaration on Human RightsArt 1: Born free and equal in dignity and rightsArt 19: Freedom of expression and ideas and to receive and impart informationArt 27: Free participation in cultural life of the community, to enjoy arts …

The Persons With Disabilities (Equal Opportunities, Protection Of Rights and Full Participation) Act, 1995

Right to free education, Reservation in employment, Affirmative Action and Non-discrimination, in addition to research and manpower development, social security and grievance redressal

Some normative issues


Hindrance faced by the visually disabled in enjoying copyright works in the normal format

Accessibility


PerformancesDirect enjoymentType

ArtisticArtistic

Sound recordingsSound recordings

?FilmsFilms

Radio broadcastsRadio broadcasts

?TelevisionTelevision

MusicalMusical

DramaticDramatic

LiteraryLiterary

How to address the issue of exceptions for the visually impaired

Normatively and practicallyWe are not talking of charity by the rightholderWe are talking of rights of fellow citizens including the rightholder

Economic factorsMarket failure

Raison d’etre of Intellectual Property Rights

CompetitionOther methods to introduce competition

Numbers indicate the possibility of market for products specially designed for the visually impaired

There would be a demand which can be met if the supply is at the correct price

Some economics


Enquiry into the price of copyright works

…economics


p+CA+CON+CPN=PN

p+CA+COS+CPS=PS

p+CA+COS+CPS=PS

p+CA+COS+CPS=PS

p+CA+COS+CPS=PS

Possible mapping on the Berne 3-step testMarket failure –– Special casesSpecial cases

Breakdown of consensual bargainSocial good is enhanced owing to involuntary transfer of usage rights

Balancing injury and benefit –– NonNon--normal exploitationnormal exploitationIf PR < PU social welfare is increased in the event of exchange taking placeHowever, if this inequality is reversed owing to the inability of the user to pay the price asked for and exchange is forced then the injury to the rightholder is perceived to be lower than the gain to the user – a case for fair use

Substantial injury hurdle – No undue hurt to legitimate interestsNo undue hurt to legitimate interestsFair use to be denied whenever substantial injury likely to occur which could impair incentives

The 3-step test: The Economist hits back


Dual useSpecial formats designed for the visually impairedAs refinement brought about the formats can be enjoyed by those without impairmentQuestions

Is the market the best place to decide on accessibility for the visually impaired?Which market is larger?Who is the ‘free rider’?Is it possible to segregate the markets based upon the consumer’s ability to see?

Solutions being attemptedOne-on-one exceptionDirected supply of special format works

Other issues


Possibilities on exceptions under various international instruments

Other issues


NoYesNANoYesNoYesNAFixation

NoYesNoYesNoYesNoYesNoYesPerformances

NoYesNoYesNoYesNoYesYesYesOther communication to the public by electronic transmission

NoYesYesYesNoYesNoYesYesYesBroadcasting

NoYesNoYesNot provided.NANAa.Lending

NoYesNoYesNoYesNANAa.Rental

NoYesNoYesNoYesNoYesNoYes.Distribution

NoYesNoYesNoYesNoYesNoNoAdaptation

NoYesNoYesNoYesNoYesNoYesReproduction

Right WPPTWCTTRIPSRome BerneInstrument

There are no specific provisions in the Act at present for the visually impairedA new section was drafted for insertion vide an amendment to theAct

This draft was put up for consultations with the stakeholdersCertain responses were receivedOne such response is discussed in comparison with the draft of the Copyright Office on the anvil of the 3-step test

Current provisions in the Actand proposed amendments



Dependent on the success of meeting the next two stepsThe format is not specifically directed at the beneficiaryEnforcement of the exception would be necessary to ensure only the beneficiaries benefitNew kind of infringement introduced if the i.e. use by non-target beneficiary

‘only’Special case

The adaptation, reproduction or issue of copies, or communication to the public of any work in any format, including sign language, specially designed or not, but intended exclusively for the use of persons suffering from a visual, aural or any other disability that prevents the perusal or understanding or comprehension or enhanced enjoyment of such work in their normal form.

(za) 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 works in their normal format.

Draft amendment

AssociationCopyright OfficeItem


The scope of the exception considerably enhanced by substituting ‘enjoyment’ with ‘perusal or understanding or comprehension or enhanced enjoyment’The terms not defined e.g. ‘enhanced enjoyment’

unless the term is meant to convey the sense of simultaneous multi-sensual satisfaction that a person without the relevant disability could derive from the work.

Unclear as to success against this criterion

‘normal exploitation of the work’ is essentially to be seen in economic terms whereby the major source of revenues to the rightholder would be seen to be the normal exploitation.Meets the criterion

What constitutes the normal exploitation of the work?to reach the maximum audience on the terms of the rightholderAny adaptation or reproduction or issue of copies or communication to public

normal exploitation of the work even if it is specifically designed for the disabled if such acts were intentionally targeted at the disabled.

Non-normal exploitation of the work

The adaptation, reproduction or issue of copies, or communication to the public of any work in any format, includingsign language, specially designed or not, but intended exclusively for the use of persons suffering from a visual, aural or any other disability that prevents the perusal or understanding or comprehension or enhanced enjoyment of such work in their normal form.


Draft amendment



An economic argumentWhat would be the share in revenues of this type of use as compared to the previously intended exploitation?Is likely to pass this test overall except where the format in question becomes popular on its own merit even with the non-intended beneficiary as is likely to be happening in the case of audio-books.

No unreasonable prejudice to the author

The adaptation, reproduction or issue of copies, or communication to the public of any work in any format, including sign language, specially designed or not, but intended exclusively for the use of persons suffering from a visual, aural or any other disability that prevents the perusal or understanding or comprehension or enhanced enjoyment of such work in their normal form.


Draft amendment


Law of copyrights a reflection of the economic rationale behind protection of creative expressionRole of specific exceptions for the visually impaired is to ensure effective control over market failure conditions for this class of consumerRights-based approach has severe limitations in answering questions related to the visually impaired

Law does not recognise economic conditions of the agents in actionInjury-benefit balance can be difficult to achieve

Different prisms used for viewing yield different resultsA rightholder in a developed country has her interests better articulated

The threat of injury to her determines the extent of the exceptionThere exists a genuine market for copyright works for the visually impaired

Equity, education and opportunity for the visually impaired likely to dominate public policy space in a developing country pushing rights in the background

Conclusions


There are certain miscellaneous exceptions in the Copyright Act under Section 52 which are interesting:

(s) the making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture;

Not to be ignored…


Interesting…

(t) the making or publishing of a painting, drawing, engraving or photograph of sculpture, or other artistic work falling under sub-clause (iii) of clause (c) of section 2, if such work is permanently situate in a public place or any premises to which the public has access;



Interesting…

(u) the inclusion in a cinematograph film of-(i) any artistic work permanently situate in a

public place or any premises to which the public has access; or (ii) any other artistic work, if such inclusion

is only by way of background or is otherwise incidental to the principal matters represented in the film;



Interesting…

(v) the use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work: PROVIDED that he does not thereby repeat or imitate the main design of the work;



Interesting…

(za) the performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority.Explanation : For the purpose of this clause, religious ceremony including a marriage procession and other social festivities associated with a marriage.



Thank you

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