Category Archives: Legal Writing

The Proposed Accessibility Exception to Copyright

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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’ 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’ 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.

(Bihu Sharma can be reached at bihusharma[at]gmail[dot]com, and Nandita Saikia can be reached at saikianandita[at]gmail[dot]com.)

Image Source: WikiCommons

Wherever, Whenever, Whatever

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Lunar libration

It isn’t unusual to have a contract which assigns “all rights in perpetuity throughout the world”. Obtaining worldwide rights isn’t enough to satisfy some entities though and they’ve begun to have contracts drafted in which rights are assigned “throughout the universe”.

The phrase “throughout the universe” isn’t commonly used in India but seems to be becoming relatively common in some parts of the world. It seemed like a massive overkill, so the first time I saw it (in a Publishing Agreement), I discussed it with a lawyer who gave me a rather strange look and then told me that she usually defines the territories to which a contract pertains in terms of countries or continents, adding that that should pretty much cover it.

A recent article in the WSJ – Lawyerese Goes Galactic as Contracts Try to Master the Universe – might explain the phenomenon though: “Paranoia is Paramount”. So, when you’re trying to ensure that you’ve covered every possible base, you define your territory as “the Universe”. And you might also come up with other manifestations of Paranoia by using phrases like “from the beginning to Time”.

Such overkills are sometimes defended by saying that they are “efficient and reliable” methods to ensure that there are no limitations or restrictions. However, personally, I think I’d prefer to use terms like “without territorial limitations” than to use futuristic terms like “the Universe” in defining a territory.

Of course, “without territorial limitations” has its limitations too: would without territorial limitation refer to Earth alone and not apply to, well, outer space? And if one were to use a phrase such as “all over the Earth and in space”, would that mean that the rights granted in a contract could not be exercised on Neptune because it may not technically be “space” since it is an “ice giant”? If a lawyer suspects that these are issues which may cause litigation in future, he would probably do well to define the territory as “the Universe”.

However, considering that we’re probably nowhere near conducting inter-galactic commerce, or even inter-planetary commerce within our own solar system, it would probably not be necessary to define a contractual territory so broadly. That being said, today, there are often situations in which parties to contracts find themselves embroiled in disputes because contracts which they signed thirty years ago did not take into consideration the development of the Internet or the creation of a number of “new” methods to exploit various rights such exploitation through DVDs with reference to the copyright in Films. When it comes to IP contacts, it’s now almost standard practice to say that the rights granted “may be exploited using any technology currently known or developed in the future”.

Talking about the Universe does nothing beyond taking into account massive technological advances that would change the territory in which rights could be exploited. After all, the possibility of there being human settlements on the far side of the moon in less than a century’s time may not be nil.

Perhaps using terms which now seem futuristic isn’t about Paranoia but about Prudence. Who knows? Just maybe, the world (?) portrayed in Star Trek will be reality in the not too distant future.

Addendum: After all, scientists already seem to have found water on the moon. And there are debates beginning to emerge about whether the resources on the moon can be exploited by any country — the Treaty of the Moon has been ratified by less than two dozen States, and none is them is really into exploring space. As such, it isn’t the most effective treaty which has ever been signed.

(This article is by Nandita Saikia and was first published at LawMatters.in.)

Provisional Specifications in Patent Applications

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Every patent application under the Indian Patents Act, 1970 must be accompanied by the specifications of the invention. These specifications may either be provisional or complete. If the specifications are provisional, the complete specifications must be filed subsequently within a period of 12 months.

A provisional specification is not expected to fully disclose an invention with all the relevant details as these may not even be known to the applicant at the time it is filed. In fact, a provisional specification of an idea (which is in the process of being converted into an invention) may even be filed although, of course, even in such a case, a complete specification must be filed within 12 months. What a provisional specification is required to do is disclose the nature of the invention.

The provisional specification must be filed in the prescribed Form 2 which forms the first page of the specification. This Form contains the following information:
1.The Title of the Invention
2.Name, Nationality and Address of the Applicant(s)
3.Preamble to the Description: The following specification describes the invention.
4.Description (on a new page).
5.Date And Signature (to be given at the end of the last page of the specification).

The Title of the invention in a provisional specification should give a clear idea of the industry and the subject to which the invention relates. It should be brief – not more than fifteen words – precise, and descriptive of the invention. It should not contain words such as the inventor’s name, adjectives like ‘good’, ‘brilliant’, ‘best’, etc., or words in Indian languages. Some examples of the titles of patents are: Compositions comprising Carbazoles and Cyclodextrins, Novel Amino Acid Derivatives with Improved Multi-Drug Resistance Activity, A Method of Phenol Tar Desalting, Capillary Dewatering Method and Apparatus.

Form 2 is required to be filed along with Form 1 which is the application for the grant of a patent, and the information in Form 2 must correspond to that in Form 1. Form 2, however, is only the first page of the provisional specification to which additional pages which describe the nature of the invention are attached as follows: (i) an introduction mentioning what the field of the invention is and what the subject matter to which it relates is, (ii) the background of the invention containing a description of the relevant prior art along with its drawbacks, why the invention is needed and what it is to do / what problem it is to solve, (iii) a summary of the nature of the invention, (iv) a description of the invention possibly in general terms, (v) working examples and embodiments of the invention if they exist and (vi) the advantages of the invention.

Although it is permissible for the description of the invention to be in general terms, it is advisable to include as much information as is possible. This is because the claims later made in the complete specification must be fairly based on what has been disclosed in the provisional specification, and this cannot be done if the provisional specification is very sketchy. At the very least, the Description must identify what the novel features of the invention are and how they are distinct from prior art. The Description should begin with a short statement of the scope and subject of the invention such as, “This invention relates to _________,” and it should also contain:

  • The objectives of the invention possibly in the format: The principal objective of this invention is __________, Another objective of this invention is ____________, Yet another objective of this invention is _________.
  • Drawings if they are required.
  • The principle on which the invention is being developed.
  • A general statement of the essential features of the invention for which protection is desired.
  • A provisional specification does not contain claims since at the time it is filed; it is unlikely that an applicant would know what the claims are.

A provisional specification helps to identify the invention. It is typically drafted before an invention is ready in its final form and therefore focuses on the nature of the invention which it discloses. It is a document of record and it cannot be amended by adding new matter to it once it has been filed. In fact, no amendment would be allowed which has the effect of adding fresh matter or extending the scope of the invention. Deleting information would also not generally be allowed especially if such deletion would result in the scope of the invention being broadened.

The main purpose of filing an application with a provisional specification is to establish a priority date. A provisional specification establishes the earliest ownership of an invention although it does not in itself confer any legal rights. It is sometimes possible to get a provisional specification amended by post-dating the application. However, doing this would automatically result in the ‘loss’ of the priority date.

Until a complete specification is filed, an application which is filed along with a provisional specification will not be examined by an examiner of the patent office with a view to deciding whether or not a patent should be granted. If a complete specification is not filed within 12 months of the filing of the provisional specification, the application for the grant of a patent is deemed to have been abandoned. However, if a patent is subsequently granted for the invention after the filing of the complete specification, the date of the patent will be the date on which the application accompanied by the provisional specification was filed.

By Nandita Saikia

References:
Indian Patents Act, 1970
Indian Patents Rules, 2003
Subbaram on Patent Law; Wadhwa; 2007

(This article is by Nandita Saikia and was first published at LawMatters.in.)

Copyright Lingo

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That copyright tends to create a language of its own isn’t something which is entirely surprising to anyone familiar with it. There are both advantages and disadvantages to intellectual property and the debate whether public interest is well served by the protection of private interests via the medium of intellectual property has been going on for a while now.

Intellectual property is not an especially old form of property. Copyrights, for example, were first seen in the year 1710 and arose to protect the monopoly the Stationers had earlier enjoyed as members of the Company of Stationers of London which basically acted as a private censor for the Crown. By 1710, the Crown became much less finicky about the publication and dissemination of seditious material which resulted in the stationers effectively being out of a job.

The members of the defunct company responded by petitioning Parliament to protect the intellectual property of literary works by creating an author’s copyright which they assumed (correctly) would be assigned to them. And ever since, the publishing lobby has lobbied for stronger and stronger copyright protection.

Not too surprisingly, copyright is now considered by many outside the ‘copyright community’ to be completely out of whack since it protects the private interests of copyright owners (usually publishing corporations) to an absurd degree.

In some cases this is seen in the Indian Copyright Act itself. For example, in 1994, the law was amended so that communication to the public for the purpose of determining whether or not infringement had occurred did not require any member of the public to have actually seen or heard the work communicated. In other words, the copyright is infringed by the mere transmission of the work to the public and not its communication to the public. Considering that one of the aims of copyright law is presumably not the recreation of the English language, the term communication in the statute is misleading.

Reinterpreting English in completely non-orthodox ways is not limited to legislators though. In a recent order in the case of Urooj Ahmed vs. Maya Appliances (A. No. 5533/2008 in  C S 949/2008), Justice Shivakumar of the Madras High Court decided that a suit for the infringement of a design can be filed in the place where the plaintiff resides by his interpretations of the Copyright Act and the Designs Act.

In general, a suit must be filed where the defendant resides but Section 62 of the Copyright Act institutes an exception to this rule by saying that a suit for infringement may be filed where
the plaintiff resides. There is no such provision which exists in the Designs Act but relying on Section 11 of the Designs Act which says that the registered proprietor of a design owns the copyright in the design, Justice Shivakumar has decided that the provision regarding jurisdiction in Section 62 of the Copyright Act also applies to designs under the Designs Act.

To come to such a conclusion, the assumptions seem to have been that (a) the copyright which exists in a design is the same as the copyright which exists in those works protected by the Copyright Act and (b) that copyright infringement under the Copyright Act is analogous to the infringement of a design.

The result: designs have been afforded protection not envisaged by law because of a creative interpretation of the law.

Image Source – Wikimedia Commons

 

(This article is by Nandita Saikia and was first published at LawMatters.in.)