Marrakesh treaty bolsters India’s effort to make written work accessible for the disabled.
The joy at the passing of the amendment to the Indian Copyright Act in 2012, enabling persons with disabilities to convert, or have converted on their behalf, works published in India into accessible formats like braille, ebooks, audio etc, was limited. Books published in India were now within the reach of millions of persons for whom copyright law was a barrier to access but for books published elsewhere — which are especially important in academia — access was still a distant dream. Finally, this hurdle has been crossed with India signing the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled, last week.
Traditionally, copyright law is seen as protecting free expression by safeguarding the rights of the owner of a work to be acknowledged as such, and by ensuring that they collect the benefits accruing from the work. However, intellectual property rights in general have also been acknowledged as a curb on many basic rights. Activists have tried to, on several occasions, balance the needs of industry and of consumers, and exceptions to copyright law have been recognised since the Berne Convention for the Protection of Literary and Artistic Works of 1886 and continue to evolve to this day.
In the case of persons with disabilities, there were barriers to their right of access to knowledge, which is a corollary of the right to free speech and expression. The access to knowledge movement is a complex one, with stakeholders examining issues from various perspectives, including intellectual property, privacy and security. But for persons with disabilities, the debate was really at the entry level — was there any point to the availability of knowledge if it did not come with the right to be able to access it in the format they were comfortable with?
Issues concerning persons with disabilities and their access to copyrighted material have been highlighted in the international community since 1981, when the governing bodies of the World Intellectual Property Organisation and UNESCO agreed to create a working group on “access by the visually and auditory handicapped to material reproducing works produced by copyright”. This was further reiterated in 2006, with the drafting of the United Nations Convention on the Rights of Persons with Disabilities. Article 30 of the convention states that laws protecting intellectual property must not pose a discriminatory or unreasonable barrier limiting access to cultural materials. In a way, it qualifies Article 27 of the Universal Declaration of Human Rights, which states that “everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits”, making it more relevant for persons with disabilities.
The struggle has not been easy. Countries like the United States and those that are part of the European Union, as well as powerful lobbies like the Trans-Atlantic Business Council and the Motion Picture Association of America, opposed the treaty to a large extent. There were fears that accessibility methods like ebooks would be used by the general population and that the exceptions for the disabled in the context of copyright might open the floodgates for similar exceptions across intellectual property regimes.
Despite the battle looking as lopsided as it did, countries from the global south as well as civil society organisations lobbied and rallied for access to print materials to be viewed as a right rather than an act of charity. The Indian government and civil society activists like Rahul Cherian and the Centre for Internet and Society played a huge role in the eventual outcome of the treaty.
Sadly, however, sacrifices were made along the way. The Motion Picture Association of America successfully lobbied to have, first, the deaf community, and later, audiovisual material, removed from the purview of the treaty, which ensures that persons with disabilities are still discriminated against, especially in a context where audiovisual material is increasingly used in education and the dissemination of information. The domestic law in India, thankfully, includes an exception for all works protected by copyright, for all disabilities.
The hope is that this will not be the end of the road for the international struggle for access and that the fight for access for all persons challenged by conventional media because of their disabilities will continue. The social model of disability does not place emphasis on the impairment of the individual but rather on barriers in society that prevent a person’s participation and equal access to resources. Recognition of this evolving concept through instruments like the Marrakesh treaty is another step forward in eliminating these barriers and it is hoped that the ratification process will receive the support it requires to ensure that the “right to read” does not remain merely on paper.
The writer is an advocate, and fellow, Inclusive Planet Centre for Disability Law and Policy, Chennai