17 July 2018

Copyright and TRAI's Recommendations for the Benefit of PWDs

The recommendations on making ICT accessible to persons with disabilities in relation to telecommunications, broadcasting and cable services released by TRAI on July 9, 2018, appear to have missed an opportunity to address the conflict between maximalist copyright practices and the aim of having content be accessible to persons with disabilities.

Provisions were made, in the 2012 amendment to the 1957 Copyright Act, to facilitate access by persons with disabilities to protected works. This was achieved through an exception to copyright infringement in what came to be Section 52(1)(zb) of the statute supported by a then-new compulsory licence in Section 31B which could be sought in cases where the exception proved to be inadequate.

In essence and sacrificing nuance for brevity, the exception to infringement began to allow the reproduction of protected works in accessible formats for personal use, education and research provided that the reproduction would be on ‘a non-profit basis but to recover only the cost of production’ if it were undertaken by an organisation the organisation ensuring that the accessible copies were used only by persons with disabilities and taking reasonable steps to prevent the entry of the accessible copies into ordinary channels of business. In cases where the reproduction was intended to be on a commercial basis, the statute envisaged having any person working for the benefit of persons with disabilities apply to the Copyright Board for a compulsory licence to publish works work in accessible formats for their benefit.

Additionally, Section 65A(2) of the Copyright Act, also introduced to the statute through the 2012 amendment, in relevant part, stated:
Nothing in sub-section (1) [which prohibits persons from circumventing effective technological measures applied for the purpose of protecting rights conferred by the Copyright Act with the intention of infringing them] shall prevent any person from,— (a) doing anything referred to therein for a purpose not expressly prohibited by this Act...

In effect, this generally allowed TPM to be legally circumvented to render works in formats accessible to PWDs provided one's actions fell under the scope of provisions of the 1957 Copyright Act which could be invoked for their benefit: in particular, Sections 52(1)(zb) and 31B.

Despite this, the 2018 TRAI recommendations do not go as far as they could have gone. They are not oblivious to having content be accessible to persons with disabilities: they refer to international practice and to Section 42 of the Rights of Persons with Disabilities (RPWD) Act, 2016, which states:
The appropriate Government shall take measures to ensure that,— (i) all contents available in audio, print and electronic media are in accessible format; (ii) persons with disabilities have access to electronic media by providing audio description, sign language interpretation and close captioning; (iii) electronic goods and equipment which are meant for every day use are available in universal design.
Unfortunately, the Recommendations limit themselves to focusing on such issues as ensuring that bills sent to consumers with disabilities are comprehensible, features such as those pertaining to magnification and contrast are available, and customer service is accessible. While all of these are important, they do not immediately counter the impediments to accessing content which of technological protection measures can cause to persons with disabilities. 

The Recommendations do not change the law but they do not make it any easier for persons with disabilities to access "locked" content even within the framework of the law. There is, for example, no proposal through which a content owner may be obliged to help a person with a disability to access content which is protected not just by copyright but also by technological protection measures. This leaves persons with disabilities no worse off than they were but, had the Recommendations addressed the challenges which digital rights management poses, they could potentially have been left significantly better off. 
(This post is by Nandita Saikia and was first published at IN Content Law.)

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