— Joseph Straus in ‘Extraordinary Measures’
Currently-abled people are considered to both create and consume content but the Indian copyright statute tends to recognise people with disabilities primarily as people who consume cultural artefacts rather than as those who create them too.
Current Indian Law
The 2012 amendments to the 1957 Indian Copyright Act introduced provisions for the benefit of people with disabilities into the statute. These provisions took the form of an exception to copyright infringement in Section 52(1)(zb) and a compulsory licence in Section 31B, the latter of which was intended to cover situations to which the former could not apply.
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'.
Both of these provisions speak of access to existing works and not of the authorship of works which could potentially come into being. At the time the amendments were passed, they were hard-won ‘rights’ which were almost inarguably the most progressive disability provisions globally.
Personal Recollections of the Path to the Amendments
Early versions of the so-called disability proposals to amend the 1957 Copyright Act focussed on enabling people who were blind to access protected works.
At the time they were being discussed, I was a young lawyer who, by an extraordinary stroke of luck, found herself working with one of the country's most formidable intellectual property lawyers. He was both collegial and kind, never once attempting to redirect my attention from issues that were important to me and only requiring me to be able to defend my own words.
Our days working on the bill, which would soon turn to years, were spent analysing international exhaustion and other commercial issues for the most part although, as it turned out, what was most important to me were the disability proposals. I was furious about how narrow their scope was because I viscerally knew that they would not make a difference to most people with disabilities and found myself calling Shamnad Basheer; his number was easily accessible and I knew he was working on the disability proposals. I didn't then know him at all and, although I don't think I realised it at the time, I now know that I was entirely intemperate when we spoke. He handled my anger with far more grace than I had any right to expect.
Later versions of the bill which Shamnad, Rahul Cherian, and a number of other experts worked on were much broader. (My own thoughts at the time on how the provisions could perhaps have been structured are here: SSRN.) Shamnad himself, thankfully, did not hold my outburst against me and became a friend I could turn to until he passed on in 2019. We had last spoken a few weeks before his death; unbeknownst to me, we were in different time zones. I’d turned to him for guidance and reassurance not knowing what to do with a legal knot I was dealing with in my own life; he called me back after he woke up.
This time, when copyright law could perhaps benefit from reinterpretation once again, either through policy or legislative measures, there will be no calls returned or taken, and it is impossible not to feel that loss.
From Access to Authorship
What I think changes the equation now is the proliferation of generative artificial intelligence. Debates have been raging about AI and authorship, and the interaction between AI and human creativity.
In 2012, there was no real difference to consider between authors based on whether or not they had disabilities because the technology to fundamentally change how we perceive the act of creating content was not in common use. With GenAI in the picture now, it is worth asking whether the law should be structured so that the compensatory use of technology as support for creativity by persons with disabilities should be treated as being on a different footing from the supportive use of technology by those currently-abled in the process of creating works. Doing so may not be ideal simply because if the legal treatment of people were different on that basis, it would immediately require proof of basis which would undoubtedly trigger the development of inescapable bureaucratic hurdles for people with disabilities to clear.
A better approach would probably be to consider universal design such that the threshold for copyrightability remains standardised for everyone regardless of whether or not they have disabilities but is reconstructed so that it does not act as a barrier to those who do have disabilities. Doing so would probably require us to reconsider our apprehension of non-human authors and become more accepting of the possible role of AI in authorship but, then again, we already accept non-human authors when it comes to films and sound recordings through ‘producers’ recognised by the 1957 Copyright Act who may be corporate entities or, in the language of the 2018 Practice Manuals, ‘producing companies’. (See: 3. The Statutory Anticipation of AI, Artificial Intelligence: An Opportunity to Recast Copyright Law) If we are willing to accept non-human authors in line with commercial imperatives, there seems to be little reason why we should not do so in service of human dignity.
Recent Discussions
Thus far, when it comes to copyright and AI, our focus has been on infringement and training data and not on authorship. There is, of course, the question of whether training data should be viewed primarily through the lens of copyright at all but, leaving that aside for the moment, in terms of licensing, there's quite a strong push towards developing a form of "one licence/one payment" which would enable AI companies to proceed to use data with as little friction as possible.
My own suspicion is that such an approach risks turning the legal landscape into a constitutional and jurisprudential minefield potentially open to multiple challenges under Articles 19 and 21 of the Constitution given that it has the potential to run roughshod over individuals’ privacy, authors’ and performers’ moral rights, the rights of citizens to engage in trade. A more robust solution to the issue would be, I suspect, to accord differential treatment to works on the basis of authorship and availability. (I still don't have firm opinions but this is one model I’d thought might be viable: [PDF] 5. The Data underlying Computational Creativity, Artificial Intelligence: An Opportunity to Recast Copyright Law).
We have form for splitting rights. Copyright lawyers routinely do so with abandon. Rights are split with reference to works, territories, royalties, duration and more into a seemingly infinite number of permutations and combinations. That we could take that same skill and apply it to infringement seems obvious if somewhat tedious and potentially more expensive than developing a blanket licence scheme would be. That we could also take that same skill and apply it to authorship, too, does not seem to be unthinkable. And perhaps that's exactly what we should do in aid of social inclusion and human dignity.
If not anything else, to fail to accord people with disabilities rights at par with those who are not currently disabled seems to be not just inequitable but also unconstitutional.
Postscript. Reading ‘Extraordinary Measures’ by Joseph Straus prompted this post. Reproducing a few thoughts upon reading it to highlight, through one observed example, that legal change, while useful, is not enough when the social recognition of disability remains strained by class and gender —
One issue which the book doesn't seem to (so far) touch on though is the class and gendered lens through which disability is seen or, in some cases, simply not seen.
It is not affliction or afflatus even if it is documented in scans; it is simply non-existent. If it is the result of domestic assault, it may be socially viewed into non-existence as all domestic assault may be viewed (particularly within the so-called 'upper' classes where acknowledgment disrupts the fiction of civility and challenges the structure of power). If it doesn't result in complete disruption, it may be medically viewed into non-existence since the levels of functionality (and dexterity) musicians routinely require may be drastically different from the requirements of non-musicians who do not need as high a level of precision.
Extraordinary Measures talks about how performers with disabilities must perform music and perform disability. That's true enough in most cases. However, the performance of disability becomes impossible when its existence is met with willful blindness.
Gender, of course, comes in: literature is not short of explorations of the differential treatment and pain relief men and women receive. Class, too, makes a difference ironically with the expectation of simply powering through seeming to be far more entrenched in the supposedly 'upper' classes possibly because of their unwillingness to acknowledge disability at all when the causes are interpersonal.
Pain so extreme that it would fell most people becomes self indulgence. Bones visibly not where they should be become self inflicted postural issues. And 'substandard' performance through the collapse of the neuro-muscular-skeletal system becomes moral failing, an expression of laziness. Disability as divine affliction once again, that old trope, rather than as its counterpart, divine afflatus — inaccurate too, but perhaps more cognisant of the miracle that any performance at all, competent or not, may be.
It is extraordinary to see how perceptions of disability can come a full circle. And, for all the enthusiasm for accommodation through law that there may not be, perhaps it also needs to be accompanied by greater social recognition of the wide spectrum of possible disabilities.