Marrakesh is a busy city in Morocco. It is a popular tourist destination. The Marrakesh Treaty to facilitate accessibility of published works to persons with blindness was signed in and named after the city.
Marella Gunta Palem is a small, agricultural village in the State of Andhra Pradesh, India. Less than hundred families live in the village, which has basic information and communication infrastructure.
It has been approximately six years since the Marrakesh Treaty was signed, and just more than two years since it came into force. India was the first country to ratify the treaty, and at the time, it was projected as a revolutionary step for enabling access to persons with blindness and other print disabilities. Even before ratifying the Marrakesh Treaty, provisions addressing accessibility to copyrighted works were introduced into Indian copyright law. The 2012 amendment to the Copyright Act included exceptions and compulsory licensing provisions, which were expected to enhance access to persons with disabilities. The Rights of Persons with Disabilities Act that followed in 2016 incorporated provisions addressing access to documents, information and communication, and provided mechanisms to enforce the same.
Considering India’s disability law background, the legislative measures are in fact important milestones. Though they played a role in building some confidence among the disability community, their impact has not been substantial from the accessibility perspective. With the exception of a few initiatives, most books and printed materials continue to be inaccessible and all access barriers continue to subsist. As of date, Marrakesh is very very far from Marella Gunta Palem on the access route map.
The Marrakesh Treaty
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled was adopted on June 27, 2013, and came into force with the ratification of the twentieth state on September 30, 2016. India was the first country to ratify the Treaty and Canada the twentieth. As of 18th December, 2018, it had fifty member states, the last to ratify being the Philippines. The European Union ratified the Treaty in 2018, substantially expanding the scope of its coverage.
The Marrakesh Treaty mandates the contracting parties to incorporate limitations and exceptions to rights of the copyright owner for purposes of making published works accessible to persons with blindness and other print disabilities. The Treaty also requires member countries to include permissions for cross-border exchange of accessible works. It covers literary and artistic works including audio books, and limitations or exceptions apply to the rights of reproduction, making available to the public, public performance (optional) and distribution in accessible formats to persons with blindness and other print disabilities. (Article 4.)
Additionally, the Treaty requires contracting parties to permit authorized organisations to make accessible format works and distribute them on a non-profit basis to persons with blindness or other print disabilities. It also requires parties to incorporate limitations or exceptions to permit persons with disabilities or someone on their behalf to make accessible format works for personal use. Possession of an authorized copy of the work has to be provided as a pre-condition for the exercise of limitations and exceptions. (Article 4.) Under the Treaty, limitations and exceptions must also be provided by contracting parties to facilitate cross-border transfer of accessible works by authorized organisations. (Article 5.)
Copyright Provisions for Persons with Disabilities in India
Copyright law in India was amended in 2012 to include an exception and compulsory licensing provisions for persons with disabilities even before India ratified the Marrakesh Treaty in 2013. At a general level, the exception under the Indian copyright law is broader than that required by the Treaty. Reproducing, issuing copies, adapting and communicating a work to the public for purposes of facilitating access to a person with disabilities is considered as fair dealing under the Indian law. Sharing of accessible works is also covered under the exception. Any person may exercise rights under the exception for purposes of personal use, educational purpose or research, and any organisation working for persons with disabilities may exercise rights for any purpose. (Section 52(1)(zb), Copyright Act, 1957 as last amended in 2012.)
The exception in India covers all works, all forms of disabilities and exempts more rights than required by the Marrakesh Treaty for any purpose as long as it is aimed at facilitating access to persons with disabilities. Furthermore, any person seeking to make works available to persons with disabilities for profit or commercial benefit may apply for a compulsory license to the Appellate Board. The compulsory license will include the royalty payable to the copyright owner and specify the limitations with respect to mode/means of publication, period of validity and number of copies, if relevant. (Section 31B, Copyright, 1957 as last amended in 2012.)
Accessibility and Rights of Persons with Disabilities Act
The Rights of Persons with Disabilities Act, passed in 2016, includes several provisions with respect to accessibility. It mandates conformance to accessibility standards in various areas including information and communication. The Government is required under the Act to ensure that all content in print, electronic and audio formats is accessible to persons with disabilities, and that access to electronic media is facilitated. Furthermore, all service providers are required under the Act to make their services accessible. Accessibility contraventions may be remedied before the appropriate disability commissioner or special courts under certain circumstances. Sections 12, 16, 42, and 46, The Rights of Persons with Disabilities Act, 2016.)
Information and Accessibility in India
Information is one of the primary raw materials for full/equal participation and success of persons with disabilities, and this obvious fact has been acknowledged in the preamble of the Marrakesh Treaty. Ability to access information and use the same without limitations is in fact integral to education, research, scientific and creative endeavour, employment, social, cultural and political participation, and independent living. The barriers to accessibility of information by persons with blindness and other print disabilities has been well documented, and extent of access has been placed by WIPO somewhere between one and seven percent of the total pool of information accessible to sighted individuals. However, some surveys have placed the total percentage of accessible materials at less than one percent worldwide. One of the primary objectives of the Marrakesh Treaty, limitations and exceptions under national copyright laws, and accessibility provisions under the disability legislations is to improve that percentage and increase the volume of accessible information.
Following the copyright amendment in 2012 and enactment of the Rights of Persons with Disabilities Act in 2016, accessibility exceptions and rights have been created for persons with disabilities in India, which can be used and enforced whenever required. Before these laws came into being, converting works into accessible formats was not statutorily exempted from copyright infringement and despite some favourable Supreme Court judgments, it was not easy to enforce accessibility. Prior to the 2012 amendment to copyright law, though making and sharing accessible formats of books, articles, and software was fraught with risk of copyright infringement, persons with blindness went ahead and took the risk. Despite its probable illegality, sharing accessible formats of books, articles and software was very common among groups of persons with blindness. However, when it came to Government documents and services, a lot depended on the discretion of the officer responsible and remedies were limited. Now, though the progress of the law has removed several hurdles to accessibility and provided rights to enforce accessibility, the progress to accessibility is painfully slow and the legacy of attitudinal and bureaucratic barriers continues to subsist.
Accessible Book Initiatives
Led by the World Intellectual Property Organisation (WIPO), which administers the Marrakesh Treaty, the Accessible Books Consortium (ABC) aims to increase the number of accessible books worldwide. It is a public-private partnership and includes several stakeholders from publishers to persons with blindness. ABC recognizes that accessible books are scarce in developing countries like India, and works towards making a difference to the number of books in accessible formats in such countries. Its activities include sharing technical skills to create accessible books, promoting inclusive publication where all books are born accessible, and building an international database and book exchange called the TIGAR service. Currently, more than two hundred thousand books in fifty five languages are available in accessible formats in ABC’s database.
In India, the Daisy Forum of India (DFI), which is a consortium of non-profit organisations, works towards making books and other materials available in accessible formats to persons with disabilities. Its objective is to make accessible books available without delay and additional expense or effort. It works with Universities, libraries, non-profit organisations and others interested in producing accessible format books, and has one hundred and twenty five members and friends as of the date of this article.
In 2016, Daisy Forum of India’s members and the Department of Empowerment of Persons with Disabilities (Divyangjan), Ministry of Social Justice and Empowerment collaboratively launched Sugamya Pustakalaya, an online library to aggregate and make available accessible books from different sources. DFI has partnerships with Accessible Books Consortium and Book Share, the largest international accessible books library, to facilitate access to books from different countries. As of date, Sugamya Pustakalaya hosts more than three lakh books of different languages in seven accessible formats. Only forty eight libraries are members of Sugamya Pustakalaya based on information on its website, and librarians of most educational institutions are not aware of it.
Persons with blindness and other disabilities may access books in the library by becoming members of any of the listed libraries. Furthermore, libraries at institutions may register with DFI and make books in the entire catalogue available to their students with disabilities. Interestingly, a response to one of the frequently asked questions on the website states that books cannot be distributed as the law does not permit such distribution in India, which seems to be a misreading of the scope of the exception under the copyright law.
Sugamya Pustakalaya is quite user friendly with a screen reader and has simple browse and search features. A cursory search using the keyword engineering produced two hundred and nine results. Books relating to different topics from water supply engineering were available in Daisy and other formats. A search for the same keyword on Amazon India’s kindle eBooks page returned more than fifty thousand results. For the keyword “law,” Sugamya Pustakalaya returned around sixteen thousand books and Amazon India returned over fifty thousand books. In both engineering and law, the number of books available in Amazon Kindle format is less than one percent of the total pool of books, and books on Sugamya Pustakalaya are much lesser than that. Kindle eBooks have enabled access to some extent, but they are not accessible enough for a person with blindness as they only facilitate easy reading, and do not permit any other work on the book.
A short survey of libraries at select premier institutions disclosed that they do not have any policies with respect to making books available in accessible formats for persons with blindness. Almost all librarians understand the needs of persons with blindness and provide support and facilities to enable access to books and other materials, but their efforts are neither organized nor concerted, and more often than not subject to discretion or interest of the individual responsible. Furthermore, most institutions are not aware of Sugamya Pustakalaya and it is therefore not surprising that they are not its members. Discussions with persons with blindness confirmed the fact that accessibility of books, journals and other materials in law, science and technology is less than one percent of the total pool of materials.
Accessibility and Government
Accessibility to information, communications and documents of the State is better than earlier, but falls short of adding meaningful value to persons with blindness and other disabilities. Some Government websites are partially accessible, but partial access cannot ensure equal participation in the society. Persons with blindness are still dependant on others for accessing certain information, facilities and services, and much desires to be done to enable independence and full participation in all walks of life.
Though they claim to be progressive, the Indian IP Office and Copyright Office website and services are not accessible to IP attorneys and individuals, who are blind and visually impaired. The online filing system is not accessible, searches cannot be done independently, documents are not in accessible formats, and officers of both IP Office and Copyright Office have attitudinal problems. In 2018, several of our attempts to persuade the Controller General and Registrar failed, and their response to RTI applications indicated that no facilities for persons with disabilities exist. We have filed complaints against the IP Office and the Copyright Office before the Chief Commissioner of Disabilities and the cases are currently pending. Time will tell if the enforcement mechanism under the Disabilities Act actually works.
The Indian Patent database is an invaluable resource of scientific and technical information as it hosts thousands of patent documents. It is an important resource for persons of science and technology including those with disabilities. The website for performing searches is currently inaccessible and thousands of documents are not in accessible formats. Unless steps are taken to make the website, database and documents accessible, scientists with blindness and other disabilities will not be able to use it for their education and research, and contribute to the progress of science and technology on an equal basis with others.
As it stands today, Marrakesh Treaty has cleared the path for accessible books for persons with blindness and other print disabilities, but a lot needs to be done to eradicate the book famine and make materials accessible. As the pool of information increases by the day, the percentage of accessible content is shrinking. Though the volume of accessible information and content is slowly increasing, the proportion of accessible books is reducing on a daily basis. Equal participation in the society is today just an elusive dream and only large scale, organized, concerted and consistent efforts can make a difference to the accessibility equation.
In this information, knowledge and technology driven world, herculean efforts are required for persons with blindness to just catch up with basic information and stay relevant. Competing with the best in a field and staying at the top is close to impossible, and equality and full/equal participation is merely an imagined order. As of now, walking through uncharted territories is the only way to reach Marella Gunta Palem from Marrakesh, and completing the journey in one life time is a farfetched dream.
I am grateful to all the librarians for taking time to provide their response. My special thanks to:
Mr. Madhu K. S., Assistant Librarian at National Law School of India University, Bangalore; and
Dr. Rama Patnaik, Librarian, Indian Institute of Management, Bangalore.
I am grateful to Mr. Dharma Teja for helping me conduct interviews with persons with blindness.