Copyright Law as a tool for Inclusion

Content owners have argued for years that copyright is a simple mechanism for the protection of author’s rights and the ownership of their creations. Globally, copyright law has been used as a tool to protect and enforce the rights of authors, publishers, record producers, software companies and movie moghuls. Copyright law has largely been responsible for creating virtual monopolies. But copyright law plays another role as important as protecting the rights of content owners, that of benefiting the world at large. In this context it is relevant to ask the question: Can Copyright Law be used as a tool for Inclusion?

Historically copyright was protected to afford greater encouragement to the production of literary works of lasting benefit to the world. One of the objectives of the first codified copyright law was to prevent publishers from having perpetual monopoly over works. Therefore copyright was available only for a short period of time after which the works were open to all to use. Thus, ideas of copyright law to balance the interests of the users and the authors began to take shape and moved away from being solely concerned with granting rights to publishers. The system of copyright was not an arrangement solely to safeguard the interests of the publishers but was an arrangement to balance interests of all the parties involved in order to espouse the greater cause of “encouragement of learning”. However, as copyright law evolved and vested interests started playing a larger role in shaping copyright law the goal of promoting scholarship and the “progress of science and useful arts” was lost. The period for which copyright is protected has been extended over the years. At present copyright in a literary work is protected for life of the author plus 60 years.

One of the communities that is hit hardest because copyright law focuses solely on the interest of publishers are persons with print impairment. Persons with print impairment, who may number close to 500 million globally, such as the visually impaired, dyslexics and persons with cerebral palsy, cannot read printed material. Publishers do not sell books in formats such as Braille, audio or e-text that can be “read” by persons with print impairment. Copyright law in most countries including India does not permit persons with print impairment to convert books into such formats as a result of which they are excluded from the education system (due to lack of text books), from working (due to lack of books for reference and research) and from leisure reading.

But all this is set to change. Over the last few years the World Blind Union, which represents more than 300 million persons with visual impairment, has been working on a draft treaty to allow for the conversion and distribution of books in accessible formats for persons with print impairment without infringing copyright. This draft treaty is currently being discussed at the World Intellectual Property Organisation and should hopefully be signed within the next few years. The Treaty, if signed, would be groundbreaking in the sense that it would be first time that international consensus will be reached on using copyright law as a tool for inclusion. As one of the people who was part of the treaty drafting exercise I find the resistance from most publishers to any expansion of the concept of “fair use” for persons with disabilities disturbing to say the least. This resistance is prevalent at the international level for the Treaty as well at the national level here in India where we have been working with disability rights organisations and policy research partners on amending Indian copyright law to achieve the same objectives (www.righttoread.in <http://www.righttoread.in/>). The common refrain of publishers is that any such change would result in piracy, almost as if blind people are the sole perpetrators of copyright infringement. The unsaid reason for the resistance is obvious: publishers do not want any expansion of the concept of “fair use”, even when they will not suffer any monetary loss. Publishers are concerned that the proposed expansion of “fair use” for the benefit of persons with print impairment could open the floodgates for further “fair use” exceptions for, say, education. So they resist this change, which will benefit hundreds of millions of persons with print disability around the world by enabling them to exercise their basic fundamental rights to read, to learn and to work.

What is encouraging though is that some momentum has built up at the national and international level on this issue with several countries supporting the Treaty. At the national level in India, the Ministry of Human Resource Development has proposed some appalling wording for the copyright amendment. But it is heartening to note that several leading politicians including India’s Law Minister has written to the Minister of Human Resource Development to re-look at the amendment. We are working at the Parliamentary level to try and ensure that the amendment is modified to meet the requirements of persons with print impairments. Over the next few months and years we will see how this plays out. We are quietly optimistic as always.

It is indeed heartening to note that there is a serious attempt to strike a balance between the interests of copyright owners and the public at large. Copyright law should be used as a tool to foster development and inclusion and should not perpetuate monopolies and exclusion. The exceptions to copyright for the benefit of persons with print impairment are a good starting point for using copyright law for one of its original purposes. In the long term I believe that these exceptions will create newer markets for publishers as a result of more print impaired persons becoming educated and having an income to BUY books in formats that they can read. After all, who will want to take the effort to convert a book into an accessible when they can buy the accessible version?

For those of you who are not convinced about the requirement of any change in the copyright landscape, let me pose these questions: should the right of a blind person to read a book be subservient to the copyright of a publisher or author? If a publisher refuses to sell a book in an accessible format, does the blind person have the right to convert the book into an accessible format? What if the book were needed for her education?