8 June 2020

[Link] Contouring IPR and service sector regulation against COVID-19

Over ten years ago, it was proposed to amend copyright law to facilitate access to protected content by persons with disabilities. Unfortunately, the proposal created a hierarchy and, in that form, it could not aid everyone who had a disability. Many people devoted a good deal of time to suggesting revisions to the proposal in the following years and, when the proposed amendment was finally passed, it facilitated access to protected works without reference to the type of work or disability. The law had been used as an instrument to effect positive social change: India now has one of the most robust regimes in the world to enable people with disabilities to access copyrighted works... We clearly know how to use the law for social engineering in public interest. It's hard to avoid thinking that in these times of upheaval, perhaps that's a skill we should more enthusiastically employ.

Sidharth Chopra and I write about shaping the law to help fight the current crisis with reference to copyright and disability as well as with reference to IPR generally and competition law:

...in 2012, provisions were introduced to the law via Sections 52(1)(zb) and 31B of the 1957 Copyright Act to allow the formats of copyrighted works to be altered to suit persons with disabilities. Section 31B describes the process through which a compulsory licence for the benefit of persons with disabilities may be granted where accessible copies are sought to be made available on a for-profit basis in circumstances which fall beyond the scope of Section 52.

The relevant provision contained in Section 52 of the Copyright Act was structured as an exception to copyright infringement. In essence, it prompts the law to turn a blind eye to persons or eligible organisations making accessible copies of protected works available to people who have disabilities (through the unauthorised adaptation, reproduction, issue of copies or communication to the public of such works) as long as they take reasonable steps to prevent accessible copies from entering ordinary channels of business and act on a non-profit basis.

[....]

In India, overriding Technological Protection Measures to execute a legal act is not an offence under copyright law although there is no body of case law establishing whether a contractual agreement not to tamper with TPM could supersede a statutory entitlement — in this case, to alter formats of copyrighted works for the benefit of persons with disabilities. Still, considering that public policy clearly veers towards allowing people with disabilities to access protected works, and considering that Indian contract law would not uphold agreements against public policy, it is difficult to imagine a court holding that the law had been broken by the otherwise legal making of an accessible copy particularly if the agreement relating to TPM were governed by Indian law.

The point of this comparatively detailed discussion of the law in relation to copyright and disability is to demonstrate that even though much of our lives linked to technology is governed by non-legislative mechanisms such as EULAs — licence agreements which specify how end-users may deal with licensed software and content — there exist regulatory opportunities to ensure that the relevant contracts are structured in a way that enhances public interest. Such an exercise is already well under way in the case of ensuring that persons with disabilities have access to copyrighted works, and there is no reason why it could not be further expanded to cover other areas and walks of life.

[....]

History is a prologue to the present, and it may be prudent to consider the impact of regulatory interventions which followed previous contagion-induced economic crises to determine the best course of action. The trouble with such an approach is that the circumstances of the past are not exactly replicated in today’s world, and historical records are almost never complete. 

The entire article is available at Medianama (May 13, 2020) and at Bar and Bench (June 01, 2020).

(This post is by Nandita Saikia and was first published at IN Content Law.)