IPR Project

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES, DEHRADUN
COLLEGE OF LEGAL STUDIES
INTELLECTUAL PROPERTY RIGHTS
PROJECT TOPIC: FAIR USE OF COPYRIGHTED WORKS BY PERSONS WITH DISABILITY.
Submitted To: Submitted by:
Ms. Charu Srivastava
Assistant Professor
INTRODUCTION
As per section 31 B, any individual working for the advantage of persons with handicap on a
benefit premise or for business might apply in the endorsed way to the copyright board for a
mandatory permit to distribute any work in which copyright subsists for the advantage of such
persons.1 It should not be a case to which the provisions of section 52(1)(zb) applies. The
Copyright Board shall dispose of such application preferably within a period of two months. 2
The copyright board might make important request to build up the candidate's certifications and
fulfill itself that the application is made in compliance with common decency.
Subsequent to providing for the proprietors of rights in the work a sensible chance of being heard
and in the wake of holding essential request, if the copyright board is fulfilled that a necessary
permit should be issued to make the work accessible to the debilitated, it might guide the register
of copyrights to give to the candidate such a permit to distribute the work.3
The obligatory permit is to determine the methods and organization of production, the period
amid which the mandatory permit might be practiced and on account of issues of duplicates, the
quantity of duplicates that might be issued including the rate or sovereignty.4
Nonetheless, where a mandatory permit has been issued, the copyright board might, on a further
application and subsequent to giving sensible chance to the proprietors of rights, amplify the
time of obligatory permit and permit the issue of more duplicates as it might consider fit.5
FAIR USE OF COPYRIGHT
A two delayed has been embraced to encourage access to the crippled. A reasonable use
procurement has been included Section 52 to give exception from copyright to arrangement of
work in uncommon organizations, for example, Braille. 6 A mandatory permit has been given to
production of work in such configuration by business substances to whom the exception under
Section 52 may not have any significant bearing.
1 Section 31B of Copyright Act, 1957.

2 Section 52(1)(zb) of Copyright Act, 1957.
3 Id.
4 Rama Sarma, Commentary on Intellectual Property Laws, 2 (Lexis Nexis, Nagpur, 2009), p. 1621.
5 Kailasam, Vedaraman, Law of Trademarks including International Registration under Madrid Protocol &
Geographical Indications, 3rd edn. (Lexis Nexis, Nagpur, 2013), p. 1081.
6 Section 52 of Copyright Act, 1957.
Another Section 31B has been acquainted with give mandatory permit in attempts to the banquet
of incapacitated.7 Any individual for the advantage of persons with inability on a benefit premise
or for business might apply to copyright board for an obligatory permit to distribute any work in
which copyright subsists for the advantage of such individual. 8 Further the section clarifies that
the license is available only in a case to which clause (zb) of subsection 1 of section 52 does not
apply and the copyright board shall dispose of such application within a period of two months
from the date of receipt of application. 9 Each mandatory permit issued under this area might
determine the methods and organization of distribution, the period amid which the obligatory
permit might be practiced and duplicates that might be issued including the rate or sovereignty.10
A new clause (zb) has been added to section 52(1) providing for fair use of the work for the
benefit of disabled.11 The statement accommodates the adjustment, generation, issue of
duplicates or correspondence to people in general of any work in any open organization, to
encourage persons with handicap to get to works incorporating imparting to any individual with
incapacity, for private or individual use, instructive reason or research. These rights are
accessible to any individual or association working for the advantage of the persons with
incapacity.12 The provisio to the proviso orders that the duplicates of the works in such open
configuration are made accessible to the persons with handicap on a non-benefit premise and just
the expense of generation could be recouped from them. Such association might guarantee that
the duplicates of works in such open organization are utilized just by persons with handicap and
ought to find a way to keep their entrance into common channels of business. 13 The rights of
disabilities are also covered in the Copyright Rules, 2013.14 Rule 17 of the same rules provide
that application for license shall be submitted in Form V with prescribed fee. 15 Under rule 18
notice of application can be sent where a copy of application can be sent to the owner of the one
7 Section 31B of Copyright Act, 1957.

8 Zakir Thomas, Overview of Changes to the Indian Copyright Law, Journal of Intellectual Property Rights, July
2012.
9 Section 52(1)(zb) of Copyright Act, 1957.
10 N.R. Subbaram, Patent Law Practices and Procedurs, 2nd edn. (Lexis Nexis, Nagpur, 2007), p. 234.
11 Supra Note 9.
12 N.R. Subbaram, Demystifying Intellectual Property Right, (Lexis Nexis, Nagpur, 2009), p. 189.
13 Philippe Cullet, Intellectual Property Protection and Sustainable development, (Lexis Nexis, Nagpur, 2005), p.
301.
14 Copyright Rules, 2013.
15 Rule 17 of Copyright Rules, 2013.
who owns the work. The principles of Natural justice should be adhered. 16 If the board feels that
the application is in proper format than copyright can be granted on the same. The license must
specify the period within which such license shall be published, medium and format in which
such work shall be published, number of copies that shall be produced, the rate at which royalties
shall be paid and the person to whom royalties shall be paid. 17 Rule 19 provides the manner in
which royalties shall be discharged.18 Rule 20 provides for the extension of period for which
license can be extended.19 Rule 21 provides for the cancellation of license. 20 The Delhi High
Court in the case of The Chancellor Masters and Scholars of The University of Oxford v.
Narendra Publishing House and Others21 held Fair use provisions, then must be interpreted so
as to strike a balance between the exclusive rights granted to the copyright holder, and the often
competing interest of enriching the public domain.
INTERNATIONAL CONVENTION PROTECTING THE DISABLED
There are various international convention that provide protection to the Disabled. Some of the
international convention are Berne Convention for the protection of literary and artistic works,
Rome Convention, TRIPS agreement, WIPO Copyright Treaty, WIPO Performances and
Phonograms Treaty, United Nations Convention on Rights of Persons with Disabilities, 2006
etc.22
The Berne Convention for the Protection of Literary and Artistic Works, 1886 (The Berne
Convention)
It secures each generation in the region of abstract exploratory and creative space and including
all types of sound and visual recordings, sensational work, musical sythesis, cinematographic
works, drawings and photos.23

17 Id.
21 2008 (38) PTC 385 (Del)
22 Kailasam, Vedaraman, Law of Trade Marks including International Registration under Madrid Protocol &
Geographical Indications, 3rd edn. (Lexis Nexis, Nagpur, 2013).
23 Rama Sarma, Commentary on Intellectual Property laws, vol. 2 (Lexis Nexis, Nagpur, 2009).
Article 9(2) of the Convention provides for an exception towards the reproduction right of
copyrighted work of the copyright holder while providing for a minimum standard for such
exception is national legislation.24
"It should be a matter for enactment in the nations of the Union to allow the generation of such
works in certain exceptional cases, gave that such propagation does not struggle with a typical
abuse of the work and does not irrationally bias the honest to goodness hobbies of the creator."25
There is essentially a three stage test which the national enactment needs to agree. This apply to
propagation of work in certain exceptional case and be such that generation does not struggle
with an ordinary abuse of the work not preposterously preference the true blue enthusiasm of the
creator.26
The International Convention for the Protection of Performers, Producers of Phonograms

and Broadcasting Organizations, 1961 (The Rome Convention)
The Rome Convention administers security for exhibitions given by entertainers, phonograms
and shows. In admiration of Persons with Disabilities, this would have a suggestion for sharing
works blocked off configuration which could be as a sound recording or a video telecast. 27
Article 15(2) of the Rome Convention permits exceptions of the same kind as are permitted for
literary and artistic works, that is, as provided for under the Berne Convention. 28 Article 7(1) of
the Rome Convention provides that protection for performers need not be given by way of an
exclusive right and this implies that it does not mandate issuance of compulsory licenses. 29
Further, it doesn't command mandatory licenses for securing the selective privileges of makers of
phonograms and proprietors of telecast. This would make it more conceivable for a special case
for the advantage of Persons with Disabilities not including compensation to be reliable with the
procurements of the Rome Convention.30
The Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 (TRIPS)

24 Article 9(2) of Berne Convention.
25 Rama Sarma, Commentary on Intellectual Property Laws, 2 (Lexis Nexis, Nagpur, 2009).
26 Sudhir Raja Ravindran, Intellectual Property and Taxation, (Lexis Nexis, Nagpur, 2007).
28 Article 15(2) of Rome Convention.
29 Article 7(1) of Rome Convention.
30 V.K. Ahuja, Intellectual Property Rights in India, Vol. II (Lexis Nexis, Nagpur, 2012).
TRIPS administers assurance for scholarly and creative acts as secured by the Berne Convention,
PC programs, aggregations of information, exhibitions given by entertainers, phonograms and
telecasts. The rights and special cases to the rights under the TRIPS for abstract and creative
works is the same as that under the Berne Convention. 31 This is clear from Article 9 of TRIPS
which requires its individuals to conform to Articles 1 to 21 of the Berne Convention. 32 This
further implies that Article 9 of the Berne Convention providing for the three-step test is also
mandated to be complied with by TRIPS. Further, Article 13 of TRIPS incorporates a slightly
modified version of test to further limit the scope of exceptions to exclusive rights (copyright). 33
Article 13 modifies the third step by mandating that the exception should not unreasonably
conflict with the legitimate interests of the right holder (and not the author as is provided under
the Berne Convention).34 OK holders need not be creators. Case in point, distributers hold rights
over the work in spite of the fact that they may not be makers of the same. Further, right holders
who are not creators don't own ethical rights to the work. In this way, Article 13 really confines
the extent of exemptions to be given to elite rights. These special cases might be those
accommodated the rights consolidated under the TRIPS furthermore those joined by the
prerequisite to agree to the Berne Convention procurement under TRIPS.35
Further, Article 14(6) of TRIPS identifying with rights in exhibitions, phonograms and telecasts
limit the extent of special cases to these rights to the degree allowed by the Rome Convention. 36
Accordingly, it is presented that a special case for the advantage of Persons with Disabilities in
admiration of any zone secured by TRIPS would need to pass a higher standard than that set by
the Berne Convention.37
The WIPO Copyright Treaty of 199638 (The WCT)
32 Article 9 of TRIPS convention.
33 Article 13 of TRIPS Convention.
34 Id.
36 Article 14 of TRIPS Convention.
38 WIPO Document SCCR/18/5.
The WCT administers assurance for scholarly and aesthetic acts as characterized in the Berne
Convention including PC projects and databases. The rights and special cases to the rights under
the WCT for abstract and imaginative works is the same as that under the Berne Convention.
This is clear from Article 1(4) of the WCT which requires its individuals to consent to Articles 1
to 21 of the Berne Convention. Article 10 of the WCT gives independently to restrictions and
special cases to elite rights which incorporate rights secured and not secured by the Berne
Convention.39 Along these lines, the WCT essentially holds the three-stage test under the Berne
Convention for conceding exemptions to select rights allowed under it. 40 Further, the concurred
proclamation concerning Article 1(4) of the WCT stretches out exemptions to the propagation
right allowed under Article 9 of the Berne Convention to the computerized environment also.
This will have suggestions on accommodating special cases to selective rights concerning
digitally available organizations of works for Persons with Disabilities.41
The WIPO Performances and Phonograms Treaty of 1996 (The WPPT)
The WPPT administers assurance for entertainers and makers of phonograms. 42 It is completely
predictable with the procurements of the Rome Convention even while it doesn't require
selection of any of the procurements of the Rome Convention. Article 16(1) of the WPPT
commands its gatherings to accommodate the same sort of exemptions to ensure entertainers and
makers of phonograms as is given by them to assurance of copyright in abstract and masterful
works which is like the procurement in the Rome Convention. 43 This essentially boils down to
the three-step test provided in the Berne Convention. Articles 7 and 11 of the APPT limit the
exceptions to the rights of the performers and producers of phonograms respectively to the extent
permitted by the three-step test.44 In view of the statements made in the diplomatic conference of
the WCT in 1996, it is clear that reproduction rights and exceptions to the same apply to the
digital environment as well and that the agreed statement applying to Article 10 of the WCT
applies mutatis mutandis to Article 16 of the WPPT.45
39 Article 10 of WCT.
2012.
42 Philippe Cullet, Intellectual Property Protection and Sustainable development, (Lexis Nexis, Nagpur, 2005).
43 Article 16 of WPPT.
44 Article 7 read with Article 11 of WPPT.
45 Article 10 read with Article 16 of WPPT.
United Nations Convention on Rights of Persons with Disabilities, 2006
The United Nations Convention on the Rights of Persons with Disabilities and its Optional
Protocol was adopted on 13 December 2006 at the United Nations Headquarters in New York,
and was opened for signature on 30 March 2007. It entered into force on May 3, 2008. India has
signed and ratified the Convention.46
The Convention aims to support the full and effective participation of persons with disabilities in
social life and development47 and to advance the rights and protect the dignity of persons with
disabilities48 and to promote equal access to employment, education, information, goods and
services. The Convention strives to ensure accessibility for persons with disabilities and requires
parties to provide accessible technology (including communication and information technology)
for persons with disabilities at affordable prices.49
In this way, procurement of works in open organizations Persons with Disabilities is a

commitment of gatherings to the Convention. 50 Gatherings are required to take proper measures
to guarantee accessibility of data to persons with handicaps, at standard with the overall public.
Article 21 of the Convention throws a positive commitment on the state gatherings to effectuate
the right to speak freely and expression, (counting the flexibility to look for, get and give data).
The procurement calls for equality between persons with incapacities and others seeing that the
right to speak freely and expression are concerned.51 This would incorporate, as gave under the
Convention, tolerating and encouraging the utilization of Braille, augmentative and option
correspondence, and all other open means, modes and organizations of correspondence of their
decision by persons with handicaps in authority cooperations. 52 Gatherings are likewise required
to find a way to guarantee that laws ensuring licensed innovation rights don't constitute a
preposterous or oppressive obstruction to access by persons with incapacities of social material.53
47 Article 1, United Nations Convention on the Rights to Persons with Disabilities, 2006 (UNCRPD)
48 Id.
49 Article 9, UNCRPD
53 Article 30(3), UNCRPD
The Convention denote a movement in the ways to deal with persons with incapacities from the
"item" to the "subject" methodology. That is to say, handicapped persons who have been, for
quite a while, saw as "articles" requiring philanthropy, medicinal treatment and social assurance,
were, for maybe the first run through, saw as "subjects" equipped for asserting their rights and
qualified for an existence of poise with free decision and educated assent being the essential
components of the same.54 Along these lines, the Convention took a gander at State Parties as
being obliged to furnish incapacitated persons with equivalent open doors and an entrance to a
sound social, social and political life molded by free decision, as an issue of right, with such
persons being qualified for the same. In the event that such access to rights and a viable activity
of the same by impaired persons requires certain adjustments to be made by the State Parties, the
Convention commands such an adjustment. Truth be told, it reaffirms that all persons with a wide
range of inabilities must appreciate every single human right and key opportunities at standard
with different persons.
With regards to such a rights-based methodology received by the Convention, it can be seen that
the WIPO proposition for sharing open arrangements of copyrighted works for print impeded
persons is predictable with and is without a doubt fundamental for accomplishing the wide
motivation behind the Convention.55 Fairness of chance and openness are a portion of the general
standards on which the Convention is based. 56 It is cheering to note that the Convention
explicitly highlights in the Preamble, "the way that the lion's share of persons with inabilities live
in states of neediness, and in such manner perceiving the basic need to address the contrary effect
of destitution on persons with incapacities."57 While perceiving financial evil of impaired persons
(brought about for the most part because of disavowal of their rights and equivalent open doors
by the State), the Convention commands the State Parties to build up an instrument for
requirement of its procurements in a way which guarantees cost adequacy and in the meantime,
moving the weight of expenses on the State. In this way, the Convention explicitly calls for State
Parties to guarantee that the goals of the Convention are satisfied at "least cost".58
55 Philippe Cullet, Intellectual Property Protection and Sustainable development, (Lexis Nexis, Nagpur, 2005).
2012.
This mirrors the engaging and empowering methodology of the Convention which would bolster
a practical answer for change, dissemination and propagation of copyrighted materials in open
arrangements for the advantage of Persons with Disabilities. 59 Under Article 4(f) of the
Convention, one of the general commitments of State Parties is to "embrace or advance
innovative work of all around composed merchandise, administrations, gear and offices which
ought to require the base conceivable adjustment and minimal expense to meet the particular
needs of a man with incapacities "60
It is a general commitment of a State Party under Article 4 of the Convention to take every single
fitting measure, including measures to adjust or nullify existing laws, regulations, traditions and
practices that constitute oppression persons with handicaps. 61 Further, Article 12 of the
Convention mandates State Parties to ensure that persons with disabilities enjoy legal capacity on
an equal basis with others in all aspects of life and require State Parties to take all measures to
provide any access which may be required by disabled persons to exercise their legal capacity. 62
Perusing Articles 4 and 12 together, it is clear that the Convention requires State Parties to
correct their national laws, if such an activity is important to guarantee that handicapped persons
can practice their legitimate limit on an equivalent premise with the others.63 This, it is submitted,
would infer that an alteration of Indian copyright law giving an exemption for Persons with
Disabilities is without a doubt a commitment for India under the Convention since such a
revision guarantees, to the point that Persons with Disabilities practice their lawful limit
including their central rights and flexibilities on an equivalent premise with others which, they
have been not able do without the special case.64
Article 9 of the Convention which particularly manages availability requires that State Parties to
take proper measures to give incapacitated persons access to data and correspondences, including
data and interchanges innovations and frameworks.65 Article 9 additionally particularly orders
State Parties to advance the configuration, improvement, creation and dissemination of available
59 Id.
61 Article 4 of United Nations Convention on Rights of Persons with Disabilities, 2006.
64 Id.
data and interchanges advances at an early stage so that these advances and frameworks get to be
open at least cost.66
The Convention sets out that persons with incapacities are qualified for the privilege to
opportunity of expression and supposition, including the flexibility to get to and bestow data on
an equivalent premise with the others.67
With the end goal of giving access to such right, State Parties are commanded under Article 21 of
the Convention to give "data expected for the overall population to persons with inabilities in
available arrangements and advancements proper to various types of incapacities in a convenient
way and without extra cost."68
Article 30 of the Convention orders State Parties to perceive the privilege of persons with
handicaps to take part on an equivalent premise with others in social life and obliges them to take
fitting activities to guarantee that incapacitated persons appreciate access to social materials in
available organizations.69 Article 30(3) explicitly requires an empowering licensed innovation
rights administration in State Parties as it sets out that "State Parties might make every single
fitting step, as per global law, to guarantee that laws ensuring protected innovation rights don't
constitute an outlandish or unfair boundary to access by persons with handicaps to social
materials."70
The Convention perceives the requirement for universal participation as an emotionally

supportive network for national endeavors for the acknowledgment of the reason and goals of the
Convention and calls for State Parties to "attempt proper and compelling measures in such
manner, between and among States and, as fitting, in association with significant global and local
associations and common society, specifically associations of persons with incapacities. 71
Article 32(1) (d) of the Convention orders State Parties to take measures giving as proper,
66 Id.
67 Article 21, UNCRPD
71 Article 32(1), UNCRPD
specialized and financial help with this respect, including by encouraging access to and sharing
of available and assistive advancements, and through the exchange of advances.72
Marrakesh Treaty
Keeping similarity with the fundamental objectives of equivalent open door, non-segregation,
access, intensive individual advancement, genuine and exhaustive association in the public eye,
the Marrakesh Treaty to Facilitate Access to Publish Works for Persons who are Blind, Visually
Impaired or generally Print Disabled (hereinafter, the Treaty) really balances out human rights
and protected innovation rights (IPR), which was affirmed by delegates from World Intellectual
Property Organization's (WIPO) 186 part states including India on June 27, 2013. 73 This Treaty
ensures outwardly debilitated individuals speedier access to books and reinforces the answer for
"book starvation" by requiring the contracting gatherings to actualize household law
procurements allowing multiplication, appropriation and making accessible of distributed works
in available configurations, for example, Braille, with specific constraints and exemptions to the
privileges of copyright right holders.
India being a creating country does not have admittance to numerous books, because of cost and
stringent protected innovation laws of particular nations. By method for this settlement, works
crosswise over fringes could be gotten to and traded by associations which serve the necessities
of the outwardly weakened, blind, and the print impaired consequently guaranteeing
harmonization as to the confinements and exemptions in order to empower operation of such
association trans-outskirt and additionally build general number of works which are accessible,
subsequently disposing of replication and help in heightening capability.74
CONCLUSION
The twentieth Session of the WIPO finished in stop at part states neglected to concur on a model
settlement that would be adequate to all countries. The 21st Session finished on a positive note
with the SCCR laying out a reasonable working arrangement to accomplish an assention among
part states on exemptions and impediments to copyright. The Committee will likewise make

suggestions to the General Assembly of the United Nations Organization according to the
timetable chose in the session. These endeavors are demonstrative of a building universal
agreement to take into account exemptions to copyright administrations for the print impaired
group.
In the Indian connection, the exertion has been a long way from attractive. The Copyright
(Amendment) Bill, 2010 attempts as far as being exceptionally prohibitive in its methodology
and making new issues as opposed to facilitating openness. While the Constitution of India and
the Copyright Act are quiet Indian legal professions have made it adequately clear people in
general hobby must be satisfied by the copyright administration. The Government has contended
for perusing the present exemptions in a sweeping way however this does not address the
necessities of the print crippled group and a particular alteration is should have been fused in the
Copyright Act, 1957. Utilization of the term 'uncommonly planned' arrangements should be
expelled from the proposed alteration. Moreover the bulky permitting administration for non-
unique organizations should be cured. There is a commitment on the Government of India to
permit persons with print hindrance to share of their rights under Articles 14, 15, 19(1) (a), 21.
Such an activity on part of the legislature is likewise required by the confirmation by India of
global traditions and settlements which require its part states to guarantee that its nationals who
are Persons with Disabilities can completely appreciate right to life, instruction, data and the
right to speak freely and expression, with a few arrangements particularly saying that part states
ought to endeavor to modify their protected innovation rights laws to empower access to Persons
with Disabilities of works in interchange/open configurations.
The revision proposed in Part IV of this paper as put together by National Access Alliance
contends for a particular special case to be made in the Copyright Act taking into consideration
generation and conveyance of open materials gave it is to a charitable premise and entirely for
the advantage of print weakened persons. The suggestion additionally unmistakably characterizes
what might constitute an 'open variant' to guarantee availability is not limited because of a
prohibitive necessity of a particular arrangement in the special case to copyright laws.
Transforming the lawful administration to guarantee such get to won't be an issue of conceding
an "exemption" to rights which are as of now allowed to proprietors of works regardless of the
cost such rights make on the improvement of learning asset and pool of data accessible to natives
of a popularity based society. A casing of examination adjusted to activate access to learning
will, it is submitted, result in a wealthier, all the more just and impartial society accommodating
all nationals without inclination or separation.

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UNIVERSITY OF PETROLEUM AND ENERGY STUDIES, DEHRADUN

COLLEGE OF LEGAL STUDIES

INTELLECTUAL PROPERTY RIGHTS

PROJECT TOPIC: FAIR USE OF COPYRIGHTED WORKS BY PERSONS WITH DISABILITY.

Submitted To: Submitted by:

Ms. Charu Srivastava

FAIR USE OF COPYRIGHT

1 Section 31B of Copyright Act, 1957.

7 Section 31B of Copyright Act, 1957.

INTERNATIONAL CONVENTION PROTECTING THE DISABLED

16 Rule 18 of Copyright Rules, 2013.

The International Convention for the Protection of Performers, Producers of Phonograms

The Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 (TRIPS)

The WIPO Copyright Treaty of 199638 (The WCT)

The WIPO Performances and Phonograms Treaty of 1996 (The WPPT)

In this way, procurement of works in open organizations Persons with Disabilities is a

The Convention perceives the requirement for universal participation as an emotionally

72 Article 32 of United Nations Convention on Rights of Persons with Disabilities, 2006.

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