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Viewing Copyright Policy through Music and Injury

    This, I think, is what policy work at its most meaningful looks like: when one is able to use one's experiences to view proposals and, hopefully, to be able to contribute towards a desirable outcome.
    Recently learning that a music teacher I had known many years ago had passed on led me to think of those long-ago lessons, and of the disability-friendly provisions in the Indian Copyright Act… 

It was only very recently that I learnt that a music teacher I had known had passed on a decade ago. I'd first met her before I was to take an exam in the 1990s, every bit as nervous as could be. 

On another occasion, at another exam, she sat outside the music room while I played — "Don't worry, I'm right here" — only to hear the piano begin emitting sounds which no instrument should. Music clips weren't easily available then, some thirty years ago, and a clothes clip I had used to secure pages flew off right in the middle of a piece, straight into the piano. Every string seemed to begin to vibrate. I ploughed through the rest of the piece although I was certain I'd fail the exam. 

The teacher was very reassuring when I told her what had happened and her barely-contained amusement was contagious. As it turned out, she was right not to worry. The examiner didn't care about the clothes clip. A raised eyebrow during the exam, the hint of a smile, and a suggestion to fish it out before I began playing the next piece; the wretched thing had fallen flat across a few strings instead of falling right through. There wasn't a word in my report about flying clips. 
Over the years, we met occasionally. When I got it into my head that I needed to keep playing even after arm injuries which clearly indicated that I couldn't do so with any degree of felicity, she was steadfastly supportive as was another musician, a gentleman who was unrelentingly exacting as a teacher and unfailingly kind as a person, now also no more. Although neither one was my primary teacher, both of them were a breath of fresh air every time I thought I couldn't breathe. My barely being able to hold a book to read it or a pen to write didn't deter them from encouraging me to find ways to make the piano sing for me. 

A locked piano
A locked piano
Unfortunately, a year of a Rachmaninoff piece — amazingly, I no longer remember which one — and countless exercises led to my handspan increasing to 9 white keys at about 180°, and forced me to recalibrate every mental calculation I made before reaching for a specific interval, but did little for my dexterity. I gave up, cutting myself off, and completely ignoring the fact that 'the woods would be very silent if no birds sang there except those that sang best', as Henry van Dyke put it. 

Nonetheless, the lessons both of them had attempted to impart remained with me: that detail matters — it wasn't unusual to spend half a year working on a single phrase — and that even if the path one hopes to take is barred to one, there are usually others available. And, if there aren't, there is always the option of forging one's own. 

Years later, when I moved into my own place, my first major purchase was an instrument. I rarely attempted to play it but knowing it was there brought me comfort. By then, in the early 2010s, I was a lawyer, and a stroke of good fortune granted me the privilege of working on analyses of the then-proposed new copyright law with one of India's most exceptional lawyers. He didn't once attempt to stifle anything I had to say even if he disagreed with me although he, quite rightly, expected me to be able to support everything I did say. 

The proposed amendments included a clause to facilitate access to copyrighted works by persons with disabilities. It wasn't a commercially-critical clause but it was one which was important to me and I spent a reasonable amount of time studying it. With my background and experience of injury, it was clear to me that early avatars of the proposed amendment to the law were drafted in a manner which would almost only have benefitted people with visual disabilities, and that too in a limited way; I was disappointed. I tried to raise the issue when I had the opportunity to do so, and separately suggested alternatives to the legislative proposal which I thought might be workable: Disability and the Indian Copyright (Amendment) Bill, 2010

All that led me to notice that early drafts of the amendments were entirely inadequate was having lived the life I had lived till then complete with both the experience of my body failing me and the hope, driven into me through music lessons, that no matter how the years unfold, there is always a path ahead. 

Other lawyers, like Shamnad Basheer and Rahul Cherian, far more experienced than me, also closely examined the relevant provisions. Eventually, with the efforts of and inputs provided by a multitude of stakeholders, in 2012, India emerged with provisions to facilitate access to copyrighted works by persons with disabilities that were, and probably still are, amongst the most clear, comprehensive and progressive in the world. 

An exception to copyright infringement was introduced to the Indian Copyright Act, 1957, in Section 52(1)(zb) as well as a compulsory licence in Section 31B which could apply in situations beyond the scope of the exception. Section 52 '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', as Sidharth Chopra and I wrote in 2020, while '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'. 

That being the case, the impediments to persons with disabilities accessing protected works are primarily social and technological. Although contract law may chime in if technological protection measures are broken without due authorisation to make protected works accessible to persons with disabilities, by itself, the Indian Copyright Act, through Section 65A, only makes the circumvention of 'an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act' a punishable offence if the circumvention is effected 'with the intention of infringing such rights' and not otherwise. 

Whether it is converting a book into Braille to aid a visually-impaired person or simply photocopying a musical score on to green paper to help someone with dyslexia, Indian copyright law does not stand in the way, and has unequivocally not done so since 2012. In a world where inequalities are enhanced by asymmetries of knowledge, even-handed access to knowledge — which the 2012 amendments help facilitate — matters. And having work related to legal policy, one's own and that of others, support the enactment of such legislation is what ultimately makes hours of effort worthwhile. 

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