1. SOCIAL AND CULTURAL EXCEPTIONS: INDIAN PERSPECTIVE VISUALLY CHALLENGED PERSONS AND INDIAN COPYRIGHT LAW.

2. INTRODUCTION Enshrined under s.52(1) (k), s.52(1)(l) and s.52(za) of the Copyright Act, 1994. Provided in public interest – needs of society Purpose:- balancing exclusive rights of authors. Ensure optimal access to creative works. Social- considerable social benefit in access to copyright material. cultural- knowledge, belief,art and other capabilities and habitats acquired by man as a member of society.

3. Provisions in Berne Convention Art.11(1)- explains that the authors of dramatic, dramatic-musical or musical works have the exclusive right of authorizing their public performance of their works. Art.14(1)(ii)-the authors of audiovisual adaptations or reproductions have the exclusive right of authorizing public performance The right of protection of ones public performance is guaranteed in the Rome Convention(Art.7).

4. Other Countries UK - S.67 of the Copyright Designs and Patent Act ( CDPA ) 1988 – playing a sound recording as a part of the activities of, or of the benefit of, a club, society or other organization is not an infringement of copyright. Condition to be followed - object charitable or for advancement of religion, education or social welfare and that the proceeds of any charge for the admission to the place where the recording is to be heard are applies solely for the purposes of the organization. DENMARK, FINLAND and NORWAY - their respective Copyright Acts. Allow use of recording of works broadcast on Radio and TV by hospitals and establishments for the special service or care of elderly or disabled persons. Iceland and Australia - do not allow use of the recorded works for advancement of any religion services. US - apart from the same exceptions as above.- allow for communication of a transmission on a single receiving apparatus of a kind commonly used in private homes, unless a direct charge is made to see or hear the transmission ; or the transmission thus received is further transmitted to the public. Recognize recorded tapes for the purpose of exception and parties where the general public is not invited but the members of the organization provided it is for non profit.

5. Three –step test. appears not only in the Berne Convention (Article 9 (2)) but also in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) (Article 13), the WIPO Copyright Treaty (WCT) (Article 10) and the WIPO Performances and Phonograms Treaty (WPPT) (Article 16). In a nutshell, the test sets limits to limitations on exclusive rights and allows limitations 1) in certain special cases; 2) that do not conflict with the normal exploitation of the work; and 3) that do not unreasonably prejudice the legitimate interests of the author / right-holder.

6. S.52(1) (k) of the Act. Deals with causing of a recording to be heard in public by utilizing it;- (i) in an enclosed room or hall meant for common use of residents in any residential premises(not being a hotel or similar establishment) as a part of the amenities provided exclusively or mainly for residents therein; or (ii) as a part of the activities of a club or similar organization which is not established or conducted for profit;

7. s.52(1)(l) of the Act. Deals with performance of a literary, dramatic or musical work by amateur club or society. Condition for access:- Performance given to non-paying audience. For the benefit of a religious institution. Objective of club are charitable purpose. Problem faced:- Difficult to determine a club object is charitable or otherwise concerned with religious purpose, education or social welfare.

8. s.52(1)(za) of the Act. Deals with performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority. explanation- for the purpose of this clause, religious ceremony including a marriage procession and other social festivities associated with marriage.

9. Applying three step test to these provisions CERTAIN SPECIAL CASES The word special denotes the the use is justifies by some clear reason of public policy or exceptional circumstances. The first test complied as the provisions are clearly defined and not wide in their scope and reach. do not conflict with the a normal exploitation of the work. normal exploitation is which can generate significant and tangible revenue. None of the provision enter into economic competition. Thus the second test is also passed not unreasonably prejudice to the legitimate interests of the right holder The 3 rd test is also satisfied as there is no unreasonable loss of income to the copyright owner because the use of works are only for non-commercial or non profit in nature.

10. A Comparative analysis Indian Copyright is very narrow do not recognize the recorded tapes played in exhibitions for their promotion. do not value the educational recreational activities i.e. those organized by students to support their talents and show case them. do not recognize recorded tapes to be played in hospitals of which require special care and treatment as music is on of the best curative measure and enhance mental fitness. no mention of those recorded tapes played as background score in TV shows. the concept of public interest is wider in scope but the provision is much narrow i.e. do not encompass the public interest as a whole.

11. Recommendations There is a need for making a distinction between normal music performance during wedding reception and performance by the disc jockeys or VJs or film actors and popular singers engaged through event managers after paying substantial amount of remuneration as the latter is in conflict with the normal exploitation of the work by the author or right holder. Recognize music therapy and include them in the provision of public interest. Encompass transmission of recorded in schools/colleges for promoting the welfare of the students. Recognize use of musical works in exhibitions and other non- profitable organizations.

12. VISUALLY CHALLENGED PERSONS AND INDIAN COPYRIGHT LAW.

13. INTRODUCTION Visual impairment or vision impairment is a vision loss(of a person) having reduced vision as to constitute a handicap that constitutes a significant limitation of visual capability resulting from disease, trauma or a congenial or degenerative condition that cannot be corrected by conventional means, including refractive correction, medication, or surgery. Considerations for such persons Equal opportunity and preamble of the Indian Constitution. Right to education. UDHR The Persons With Disabilities (Equal Opportunities, Protection Of Right and Full Participation) Act,1995.

14. BENEFICIARIES Visually impaired or print impaired persons. ACTIVITIES PERMITTED. Accessible copy of the work– a copy of print material in a format that is useful to a person with a print disabilities. Ex:- Braille prints, Large print books, Audio format of print material. Problem faced :- equally attractive to persons without visual disabilities.

15. WIPO TREATY FOR BLIND Art. 4(b) deals with Limitations and Exceptions to Exclusive Rights under Copyright– A visually impaired person to whom a work is communicated by wire or wireless means as a result of activity under clause (a) shall be permitted without the authorization of the owner of copyright to copy the work exclusively for his or her personal use. This provision is without prejudice to any other limitations and exceptions that a person is able to enjoy. Art.15 defines a visually impaired person. A person who is blind or visual impairment cannot be improved by use of corrective lenses to give visual function substantially equivalent to that of a person who has no visual impairment and so is unable to access any copyright work to substantially the same degree as a person without a disability.

16. Problems in India India has estimated 70 million persons who cannot read printed matter(for reasons of blinds and otherwise). Limited access or no access to information and cultural content which is available to the general public. @ present study materials are converted into accessible formats only by few organization serving the needs of blind school children Statistics- only 1% of visually impaired have adequate access to printed matter and only 0.5% of all published books in India get converted into accessible formats. A severe lack of human, infrastructural and financial resources is made much worse by absence of an ending legal framework.

17. PROVISIONS IN THE COPYRIGHT ACT,1957 s.52(1) carries general exceptions in the Copyright Act,1957. There are no specific provisions for the visually impaired in the Act at present. However, the fair dealing exceptions do have the usual benefits for this community as well. Proposed amendments- A new provision to benefit the visually impaired persons. Consultation and a major representation received from an association of the visually impaired are to be subjected to the three step test.

18. Analysis of the Copyright bill 2010 A new section 5(1)(zb) as been proposed in the bill to give incentives to the persons with disabilities (including visually impaired) 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. There is finally an attempt at addressing the concerns visually impaired.

19. Flaws In the Proposed Amendments Specially designed formats - permits only conversion of printed materials to specially designed formats such as Braille - disadvantage to persons affected by Cerebral Palsy, Dyslexia, low vision and people who do not know Braille and require other formats for the same. The Licensing system – permits only organizations working for benefit of disabled persons to undertake distribution and conversion of the printed materials. Prevent -- educational institutions, self help groups, other NGOs and print disabled individuals themselves from undertaking conversion and distribution. Unacceptable delays - waiting period for obtaining permissions and subsequent conversion will result in students losing academic years Violation of Art.14 – reasonable discrimination between those visually challenged who know Braille and who does not.

20. Recommendations Section 52 (1) (za) (i): The making of an accessible version of a copyrighted work or the doing of any other act including reproducing, adapting and making available the copyrighted work or accessible version thereof, on a not for profit basis, with the primary objective of enabling persons with visual, aural or other disabilities to access copyrighted works as flexibly and comfortably as persons without such disabilities; provided that a person doing any of the acts under this section shall take reasonable measures to ensure that the end beneficiary is a person with a disability. Section 52 (1) (za) (ii): For the purpose of Section 52 (1) (za) (i)"accessible version" means any version or form which gives a disabled person access to the work as flexibly and comfortably as a person without a disability, and shall include, but not be limited to, audio recordings, audiovisual works with audio and or text description, Braille, digital copies compatible with assistive technology or refreshable Braille, large print, with different typefaces and sizes and sign language all being permitted according to need.