Category Archives: Health

The Proposed Accessibility Exception to Copyright

Posted on by
1

Update (April 26, 2010):

Please note that although this does not affect the critique below, the relevant Section No. is 52(1)(zb) in the Copyright Amendment Bill, 2010, and not 52(1)(za) as mentioned herein — Section 52(1)(za) was based on documents which had reportedly been leaked and made available.

Section 52(1)(zb) reads as follows:

The adaptation, reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in their normal format.

Also read Disability and the Indian Copyright Amendment Bill, 2010 (SSRN link).

This paper is updated till May 6, 2010, and deals with both the proposed accessibility exception to copyright, and the compulsory licence which has been proposed for the benefit of disabled persons.

The Proposed Accessibility Exception to Copyright

By Nandita Saikia and Bihu Sharma

(This is a Working Paper and is based on the proposed Copyright Amendment.)

 

Introduction

The disabled in India are, for the most part, an invisible minority with disability, and often the disabled themselves, being stigmatised. In a country where access to information and education is limited by a variety of factors, including class and caste, persons who have disabilities tend to be far more disadvantaged than the average person of their own caste and class would be.

Disability is generally considered to be an individual and isolated problem and without a support structure, comprising family or other persons, that has adequate resources, having a disability in India is almost certain to limit one’s ability to be a productive member of society.

One of the ways in which disabled persons are prevented from realising their potential is by their access to printed material such as books being virtually non-existent should they suffer from a disability which hampers their ability to access printed material.

Image from WikiCommons

Image from WikiCommons

The Scale of the Issue

A large fraction of printed materials are protected by copyright law which grants the owners of copyright certain exclusive rights with respect to such materials.

In the developed world, estimates indicate that only 5 per cent of published books are converted into formats which are accessible to people with visual impairments. In India, the situation appears to be much worse. It has been estimated that only about 0.5 per cent of all published books in India are converted into accessible formats, and that less than 1 per cent of visually impaired persons have adequate access to printed matter. These statistics only take into account persons who are visually impaired.

Additionally, besides those who cannot access printed material due to reasons not related to disability such as illiteracy or financial constraints, there are millions of people in India whose access to printed material is limited because of other disabilities ranging from dyslexia to an inability to manipulate the pages of a printed book.

Exhaustion of Rights

The doctrine of Exhaustion of Rights states that once a copy of a copyrighted work has been legally sold, the copyright owner exhausts his rights in that copy of the work and can be resold without reference to or consent from the owner. This means that once a copy of a copyrighted work had been made available anywhere in the world in an accessible format, that copy would not be considered to be an infringing copy of the work in India.

Thus, although explicitly following the principle of international exhaustion could adversely impact such things as the availability of low priced editions in India, since publishers would have little incentive to make such editions available in the Indian market without the assurance that the copy would not be ‘leaked’ to countries, following a principle of international exhaustion may actually benefit disabled persons since the cross-border movement of copyrighted works in accessible formats would be legal.

The Proposed Amendment to the Copyright Act, 1957

Indian Copyright law does have ‘exceptions to copyright infringement’ incorporated in it. These exceptions could be in the form of ‘Fair Use’ or ‘Fair Dealing’ provisions, and, if one were to extend the definition of ‘exceptions to copyright’, it would also probably be possible to include within the scope of the definition statutory and compulsory copyright licences.

The Indian Copyright Act, 1957, as it stands today, however, does not contain provisions which deal with making copyrighted works accessible to disabled persons. Traditionally, exceptions to copyright have been defined in terms of very narrow circumstances in which a copyrighted work may be exploited by a person other than its owner without the consent of the owner.

The need to incorporate provisions which enable disabled persons to access to copyrighted works has, however, been recognised in recent years, and it has been proposed to amend the Copyright Act, 1957, to include within the statute a separate compulsory licensing provision to allow for the publication of copyrighted works in formats for the benefit of the physically challenged.

In addition to this, it has been proposed to incorporate an additional ‘exception to copyright infringement’ in the statute which would allow a copyrighted work to be reproduced and distributed in a format accessible to disabled persons. The proposed amendment reads as follows:

Section 52(1)(za): The reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in their normal format.

Although the proposed insertion of such a Section is, in itself, a step forward, it would appear that the provision does not serve the needs of either copyright owners or disabled persons as best it could. For example, it is entirely silent with reference to technological protection measures, and does not say that such a measure may be circumvented in order to convert a copyrighted work into an accessible format. While it would be possible to argue that the law intended to allow for technological protection measures to be circumvented under the accessibility exception, one would probably have to use rather circuitous logic to do so.

In addition to this, there are a number of other provisions in the accessibility exception which give rise to concern. The aim of an accessibility exception to copyright would presumably be to ensure that disabled persons are able to enjoy copyrighted works to the same extent as abled persons. It is, however, debatable whether the proposed amendment to the Copyright Act, 1957, is successful in doing so.

The Protection of Copyright Owners

Under the proposed amendment, the reproduction, issue of copies or communication to the public of a copyrighted work would be legal if it were in a format specially designed only for the use of persons with a disability regardless of whether or not the copyright holder had already made the work available in that format. Further, given that the format into which a work could be converted to ensure accessibility has not been qualified in any way, the original format could be modified to an extent beyond that which would be required to provide accessibility to disabled persons.

Thus, the extent to which modification has been allowed under the proposed amendment is not qualified. Ideally, for the protection of rights holders, the exception should have only applied to works which had not been made available by rights holders themselves in the necessary accessible formats (at a reasonable price and without undue effort having to be expended in order to obtain the works in question in such formats).

Further, there is also no provision in the accessibility exception which states that it would apply only to non-commercial endeavours to make copies of works in accessible formats available to disabled persons. It is conceivable that such a requirement would, in a country like India, simply restrict the applicability of the exception to an appreciable extent. Further, if the proposed amendment were to be modified along the lines mentioned in the previous paragraph, it would completely obviate the ‘need’ for a provision regarding non-commercial use since the rights of copyright owners would be adequately protected.

The Requirements of Disabled Persons

The proposed amendment requires the accessible format to have been specially designed only for the use of persons suffering from a disability (such as Braille). This would immediately exclude formats which have not been ‘specially designed’ only for disabled persons from falling within the scope of the accessibility exception. Since many of the formats which disabled persons would benefit from are not formats which have been specially designed for them (whether they be large-print photocopies for visually-impaired persons or photocopies on coloured paper for dyslexic persons), this requirement would, in a way, defeat the aim of attempting to ensure that disabled persons are in fact able to access copyrighted works.

Moreover, according to the proposed amendment, the format to provide accessibility must have been specially designed not merely for the benefit of persons with disabilities but for their use. This means that a format which may be utilised for instructional or educational purposes, for the benefit of disabled persons, without being designed specifically for the use of disabled persons, could be seen to be excluded from the scope of the accessibility exception.

Similarly, the requirement that a disabled person be prevented from being able to enjoy the work in its original format also significantly narrows down the scope of the proposed amendment since it means that certain ‘activities’ would not fall under the scope of the disability exception. If a disabled person were to enjoy a copyrightable work to any extent at all, the provisions of this exception would not apply, since the person would not be considered to have been unable to enjoy the work, or to have been prevented from doing so on account of their disability. The corollary to this is that a format of work which would merely enhance a disabled person’s ability to access and enjoy a work (such as a large print photocopy) may not fall under the scope of this exception since the disabled person may not have been prevented from enjoying the work in its original format.

With reference to accessible formats themselves, the insertion of sign language as an example of an accessible format gives rise to some concerns in itself. It would probably have been worth specifying that an accessible format contemplated by the provision could be any format whether or not it was substantially the same as the original format of the work. Such an amendment would be welcome since it is entirely conceivable that, in future, it could be argued that the law never intended for ‘minor’ changes in formats such the making of photocopies to be included within the scope of the exception considering that the one format mentioned would, in most cases, be a ‘substantial’ change, and that it betrays the legislative intent to only include ‘substantial changes’ of format within the scope of the exception.

Conclusion

While the drafting of this proposed amendment in the Indian Copyright Act, 1957, to enhance accessibility to copyrighted works at all is certainly a step in the right direction, the text of the exception is fraught with ‘loopholes’, and its language could well be considered to be a reflection of the way in which the Indian society views disabled persons.

According to the proposed amendment, disabled persons do not simply have disabilities, they are ‘persons suffering’ from disabilities, and formats in which copyrighted works are made available for abled persons (who comprise the majority of the population) are not merely the original formats but the ‘normal’ formats of those works.

India probably has a long way to go before it sees disability as nothing more than a difference instead of as an abnormality. However, in the context of an exception to copyright for the benefit of disabled persons, even as it stands, the proposed amendment would probably significantly enhance the ability of disabled persons to access copyrighted works.

Image Source: WikiCommons

Sex Selective Abortion Rampant Amongst the Rich

Posted on by
Reply

While it’s well known that female foeticide is widely practised in India, the general perception is that the practice prevails due to poverty and the lack to education.

There have been a number of studies in recent years which have disproved this. In fact, they’ve shown that some of the most lopsided sex ratios in India exist in some of the richest neighbourhoods such as GK in New Delhi and in states such as Punjab which are certainly not amongst the poorest states in the country.

A new study by the Harvard School of Public Health lead by S V Subramanian reported by the Statesman on December 15, 2008 confirms this. It found that the odds of having a boy is higher in a rich family than in a poor one, in an educated family than in an uneducated one, and in an urban family than in a rural one.

The study clearly shows that the Pre-Natal Diagnostic Techniques Act, 1994 is a failure, and that the intensity of the preference for sons together with the ease with which sex determination tests could be performed are factors which make the sex ratio so lopsided among the rich.

Saying that dowry and inheritance practices could be what causes families to want sons, the study raises the rather worrying possibility that as strong a preference for sons may simply be dormant among the poor. It goes on to say that their reduced access to technology may be what is preventing them from participating as actively in foetal sex determination followed by selective abortion.

Usually, education and awareness are touted as solutions to the problems of female infanticide and foeticide in India. Clearly, they are not solutions. It isn’t clear what would solve the problem though.

Compensation to 12-Year-Old Crippled in Motor Accident

Posted on by
Reply

On May 14, 2008, a Bench of the Supreme Court comprising Justices S B Sinha and L S Panta United India Insurance Co. Ltd. to pay higher compensation to a woman named Sapna who had been crippled and whose marriage prospects had suffered due to an accident she suffered when she was twelve years old.

In its judgment, the Supreme Court spoke of the principles governing a claim petition for assessing the damages in case of bodily injury suffered. It said that while awarding the compensation, the Tribunal should consider all relevant factors so as to enable the insured to be put in the same position as if he had not sustained any injury.

The principle of Restitutio-in-integrum may be applied in a case of nature. Pecuniary loss and non-pecuniary loss are required to be pressed under certain heads. So far as the pecuniary loss is concerned, the same can be ascertained. What is required to be done is a balancing act by awarding such sum which, on the one hand, shall take care of the loss suffered by the claimant for the present time and future pecuniary benefits and, on the other, pecuniary advantages which from whatever source comes to them by reason of such injuries. So far as non-pecuniary loss is concerned, the same has to be assessed broadly under certain heads, namely, damages for physical pain, mental suffering etc. besides the amount spent on medical treatment, if any.

In Sapna’s case, expenditure for medical treatment was granted. The High Court, in its judgment, noticed that although the Tribunal had referred to the likely effect on the matrimonial prospects of the appellant on account of permanent disability, due regard in that behalf had not been given. The fact that she would remain crippled throughout her life was also noticed but it did not appear to the Supreme Court that any serious consideration was bestowed thereupon.

The Supreme Court said that in given cases, the courts may deviate from the structured formula. In terms of the Second Schedule, where the deceased or injured were not having any income, the statute presumes an income of or about 15,000/- per month. If having regard to the age of the appellant, the multiplier of 15 is applied, a sum of Rs.2,25,000/- would be payable.

Besides the said sum, not only some amount of compensation should be awarded under the heading of mental agony but also some provision should be made for future treatment.

In Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr. [(2003) 3 SCC 148], it was held:

“11. It is now a well-settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation from the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case.”

In Nagappa v. Gurudayal Singh & Ors. [(2003) 2 SCC 274] wherein a Three Judge Bench of the Supreme Court opined that the law does not permit passing of any further award after the final award but that no one can suggest that it is improper to take into account expenditure genuinely and reasonably required to be incurred for future medical expenses. Future medical expenses required to be incurred can be determined only on the basis of fair guesswork after taking into account increase in the cost of medical treatment.”

When a person becomes completely incapable of doing any work and virtually has no enjoyment for life, the same form relevant factors and, thus, requires consideration for the purpose of determining a fair and reasonable amount of compensation.

(This article is an edited extract of the judgment.)

Protesting the Pill

Posted on by
Reply

On June 7, 1965, the U.S. Supreme Court found married couples had a right to privacy in the US Constitution in the case of Griswold v. Connecticut. The case involved an 1879 Connecticut law which prohibited the use of contraceptives. The decision was passed by a vote of 7:2. However, one of the dissenting judges, Justice Stewart, described the statute as being ‘an uncommonly silly law’, although he held that it was constitutional.

The decision enabled planned-parenthood advocate Estelle Griswold to sell birth control pills legally; she had earlier been doing so illegally.

The American Life League has chosen June 7 to be ‘Protest the Pill Day ’08: The Pill Kills Babies’. The organisation is a radical pro-’life’ organisation which is committed to telling people that birth control pills supposedly kill babies.

Customs Exemption for Private Hospitals

Posted on by
Reply

Private hospitals are entitled to exemption from customs duty on imported equipment only if they provide free treatment to the poor held a Bench of the Supreme Court comprising Justices Harjit Singh Bedi and Tarun Chatterjee on May 16, 2008 in the case of M/s. Andromeda Foundation India P.Ltd. v. D.G.H.S. (Director General Health Services) & Ors..

On March 1, 1988, a Notification was issued by the Government of India whereby medical equipment imported for specified purposes was exempted from the payment of customs duty.

In this case, taking advantage of the Notification, a private hospital imported three machines. According to the exemption Notification the imported equipment was also to be used to provide free services to the poor. Since this did not appear to have been done, the Customs Duty Exemption Certificate was withdrawn and an attempt was made to recover customs duty from the hospital.

The matter ultimately reached the Supreme Court which found that Section 124 of the Customs Act which deals with the confiscation of goods had absolutely no applicability to the case.

The Court said that having imported medical equipment on concessional terms, it was incumbent on the hospital to have scrupulously observed the conditions of the import and to have followed the guidelines designed to ensure that the equipment was being properly utilized.

In Mediwell Hospital & Health Care’s case it was held that:

“The competent authority, therefore, should continue to be vigilant and check whether the undertakings given by the applicants are being being duly complied with after getting the benefit of the exemption notification and importing the equipment without payment of customs duty and if on such enquiry the authorities are satisfied that the continuing obligations are not being carried out then it would be fully open to the authority to ask the persons who have availed of the benefit of exemption to pay the duty payable in respect of the equipments which have been imported without payment of customs duty. “

Although this judgment has been overruled in a subsequent matter on a different point, the Bench said that the observations quoted above still hold the field.

The case of Jagdish Cancer & Research Centre was also referred to. In that case, the Supreme Court considered the implications of the non-compliance with the conditions of import and observed:

“It would, not at all, be necessary to prescribe any period to achieve the given percentage of patients treated free. It should generally be all through the period. It being at least 40 per cent, there is hardly any occasion to say that in case there is more than 40 per cent in a given period, that may make good the deficiency in the previous or the following year.”

Saying that it was also conscious of the large scale misuse of the medical equipment imported under the exemption notification, the Supreme Court said that it is essential that the authorities regulatory monitor the use of the equipment.

The Court did not rule in favour of the hospital in this case.

(This article is an edited extract of the judgment.)

The Medical Examination of a Suspected Rapist

Posted on by
Reply

Section 53A was inserted into the Code of Criminal Procedure in 2005 to make provision for the medical examination persons suspected to have committed rape or attempted rape. It came into effect on June 23, 2006.

Who Can Conduct the Examination

If it is proposed to get the person arrested medically examined, the examination should be conducted by a registered medical practitioner who is employed at a hospital or at a hospital which is run by a local authority.

However, if such a doctor is not available within sixteen kilometers of the place where the offence was allegedly committed, any other registered medical practitioner, possibly with the aid of another person acting under his direction and in good faith, may conduct the examination if he is requested to do so by a police officer. The police officer must not be below the rank of sub-inspector.

A registered medical practitioner is one whose name has been entered in the State Medical Register according to Section 53 of the Code.

Consent

A person who has been arrested because of being suspected to have committed rape or attempted rape may be required to undergo a medical examination if there are reasonable grounds to believe that such an examination will afford evidence regarding the commission of the offence.

The examination can be conducted even without the consent of the person who is to be examined. An examination which is conducted without such consent is lawful.

Such force as is reasonably necessary may be used to conduct the examination.

The Examination

The examination can be carried out when the offence is being investigated. It may include the examination of blood, blood stains, swabs, sputum, sweat, etc., by the use of modern and scientific techniques including DNA profiling and any other tests which the doctor may think are necessary.

When a person is sent to a registered medical practitioner to be examined in these circumstances, the doctor is required to conduct the examination without delay and once he has completed it, he must prepare a report of his findings.

The Report

The report must state exactly when the examination began and ended. In addition to this, it must clearly identify the accused, describe the material taken from the person of the accused for DNA profiling, list marks or injuries on the person of the accused, and mention other material particulars in reasonable detail. The doctor must give reasons for each his conclusions.

After the report has been written, the doctor is required to forward it to the Investigation Officer involved in the case. The IO then forwards it to the Magistrate empowered to take cognizance of the offence on a police report.

The report of the doctor’s examination is considered to be one of the documents on which the prosecution hopes to rely on at trial.

The Medical Examination of a Rape Victim

Posted on by
Reply

Section 164A was inserted into the Code of Criminal Procedure in 2005 to make provision for the medical examination of victims of rape or of attempted rape. It came into effect on June 23, 2006.

The language used in this Section is gender specific and literally refers only to female victims of rape.

Who Can Conduct the Examination

If it is proposed to get the woman who has been subjected to the offence medically examined, the examination should be conducted by a registered medical practitioner who is employed at a hospital or at a hospital which is run by a local authority.

However, if such a doctor is not available, any other registered medical practitioner may conduct the examination.

A registered medical practitioner is one whose name has been entered in the State Medical Register according to Section 53 of the Code.

Consent

The examination can only be conducted with the consent of either the victim herself or the consent of someone who is competent to give such consent on her behalf. An examination which is conducted without such consent is not lawful.

The woman must be sent to the doctor who is to conduct the examination within twenty-four hours after the police receive information regarding the offence.

The Examination

The examination can be carried out when the offence is being investigated. It may include the examination of blood, blood stains, swabs, sputum, sweat, etc., by the use of modern and scientific techniques including DNA profiling and any other tests which the doctor may think are necessary.

When a woman is sent to a registered medical practitioner to be examined in these circumstances, the doctor is required to examine her without delay and once he has examined her, prepare a report of the findings of the examination.

The Report

The report must state exactly when the examination began and ended. In addition to this, it must clearly identify the woman, describe the material taken from her person for DNA profiling, list marks or injuries on her person, record her general mental condition and mention other material particulars in reasonable detail. The doctor must give reasons for each his conclusions.

After the report has been written, the doctor is required to forward it to the Investigation Officer involved in the case. The IO then forwards it to the Magistrate empowered to take cognizance of the offence on a police report.

The report of the doctor’s examination is considered to be one of the documents on which the prosecution hopes to rely on at trial.