Provisions for facilitating access of copyrighted works to the disabled, including blind persons, were introduced in the Indian Copyright Act, 1957 in 2012. Limitations and Exceptions in the Indian Copyright Law can be categorized into two types:

  1. Fair Dealing exception for the disabled; and
  2. Compulsory License for making works accessible to the disabled.

Fair Dealing ((Section 52(zb))

The use of a work for making it accessible to a disabled person is considered as fair dealing under the Indian Copyright Law. This exception is of two types:

  1. Exception for Personal Use, Education and Research; and
  2. Exception for Non-Profit Use

Permitted Rights

The following rights may be exercised with respect to a copyrighted work under the exception:

Right to Adaptation;

Right to Reproduction;

Right to Issue Copies; and

Right to Communicate to the Public.

The said rights may be exercised with respect to a work in any accessible format.

Works

The fair dealing exception applies to all copyrightable works, and is not limited to literary and artistic works.

  • Personal, Educational and Research Use

Any person can exercise the aforestated rights with respect to any work for facilitating access to an accessible format of a work to a disabled person. Simply put, a person can make a copy of a work, modify it and give it to a disabled person. Such acts will not amount to copyright infringement. The accessible format of the work may also be shared with another disabled person. To avail this exception, the purpose of use of the accessible format of the work must be personal, educational, or research related. Other uses are not permitted under this exception.

  • Non-Profit Use

An organisation working for the benefit of the disabled may copy, modify, and distribute a work, in an accessible format if the normal format cannot be enjoyed by a disabled person. In such a case, the accessible format of the work must be made available only to disabled persons. The organisation must offer the accessible works on a non-profit basis, and may charge for the cost of production only.

This exception is available only if the normal copy of the work is not available in an accessible format for the disabled. Also, while exercising rights under this exception the organisation must ensure that accessible format copies do not enter the normal business and trade channels. To avail of this exception, the organisation must be recognized by the government, a non-profit organisation having an exemption under the IT Act, or recognized under People With Disabilities Act. Government funded institutions, educational institutions and libraries can also avail this exception.

Compulsory License (Section 31B)

Any person working for benefit of the disabled for profit or for business purposes can make an application for compulsory license to publish any work that is the subject of copyright protection. The publication of the work under the license must be for the benefit of disabled persons. The application must be made to the copyright board, and after due review, the board may direct the Registrar to issue a compulsory license.

The compulsory license must specify:

  1. Format of the work;
  2. Means of its distribution;
  3. Period of the license;
  4. number of copies, if issue of copies is permitted; and
  5. Rate of royalty to be paid to the copyright owner.

Quick Comments

The Indian law provides broad exceptions and limitations for the benefit of the disabled.

Some quick observations:

  1. The exception applies to all types of disability and is not limited to visually disabled persons;
  2. The exception covers all types of works and is not limited to literary works;
  3. Purpose, use and means are specifically defined, though not very precisely; and
  4. Option for compulsory license has been made available for purposes not covered by fair dealing.

 
Contributed with the support of the IP Strategy and Consulting Division of BananaIP.
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