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Copyright News
New Copyright Law Helps Visually
Impaired Persons Access Protected Works
By. Linda Otieno
T
he Marrakesh Treaty came in to make
the production and sharing of books
for visually impaired persons (VIPs)
easier by putting forth a set of limitations
and exceptions to traditional copyright law.
Its full name is the Marrakesh Treaty to
Facilitate Access to Published Works for
Persons Who Are Blind, Visually Impaired,
or Otherwise Print Disabled. It was signed in
Marrakesh on June 27, 2013, and came into
force on September 30, 2016.
The Treaty forms part of the body of in-
ternational copyright treaties administered by
WIPO. It is geared towards humanitarianism
and social development. Its chief goal is a set
of mandatory exceptions for the benet of the
blind, visually impaired, and otherwise print
disabled persons. The Copyright Amendment
Act 2019 was recently adopted to localize the
spirit of the Treaty.
The Copyright Amendment Act 2019 de-
nes visually impaired persons (VIPs) through
the use of the term “beneciary person”. A ben-
eciary person means a person who is blind,
has a visual impairment or a perceptual or read-
ing disability which cannot be improved to the
level of a person without visual impairment or
is otherwise unable, through physical disability,
to hold or manipulate a book in order to read.
A VIP is a person whose eyesight cannot be
corrected to a “normal level.” In other words,
a VIP is a person who is partially or completely
blind.
In the world of copyright, it is illegal to
reproduce, distribute or otherwise use copy-
righted work without the express permission of
the owner. The previous law stated the same.
The new law dovetails
that too but with a few ad-
justments. The Copyright
Amendment Act 2019 ex-
empts visually impaired
persons (VIPs) and per-
sons with disabilities from
liability stemming from
such acts.
The recently adopted law states that it
shall not be an infringement of copyright for
an authorised entity to reproduce or distribute
copies or sound recordings of a previously pub-
lished literary work if such copies are in spe-
cialised formats exclusively for use by VIPs.
“Specialised formats” means Braille, audio,
or digital text or any other media which is ex-
clusively for use by visually impaired or other
persons with disabilities. It also includes, with
respect to print instructional materials, large
print formats when such materials are distribut-
ed exclusively for use by VIPs or other persons
with disabilities. This denition is provided un-
der Section 2 of the Amendment Act.
Where one makes, imports, distributes,
lends or shares accessible format copies by a
beneciary person, authorised entities or per-
sons acting on behalf of a beneciary person,
such person will not be held liable for copy-
right infringement. The circumvention of any
technological protection measures in place to
curb copyright contravention is also exempted
as long as it is to the aid of VIPs in accessing
published works. The above exemptions go to
add to the pre-existing defences of fair dealing,
private use, research, criticism and review.
The new law, how-
ever, does recognize that
unscrupulous individu-
als may use the VIP ex-
emption as an excuse
to access copyrighted
work unlawfully. It
therefore requires
that copies or sound
recordings for VIPs
must bear a notice
that any further reproduction or
distribution in a format other than a specialised
format is an infringement. They must also in-
clude a copyright notice identifying the copy-
right owner and the date of the original publica-
tion. This creates a balance between promoting
the rights of VIPs and protecting the intellec-
tual property rights of the copyright owner.
The introduction of the VIPs exemption
goes to further uphold the rights of disabled
persons as established in the Constitution. The
Constitution states that a person with any disa-
bility is entitled to use Sign language, Braille or
other appropriate means of communication. A
person with a disability is also entitled to access
materials and devices to overcome constraints
arising from the person’s disability.
The new copyright law is the perfect exam-
ple of legislative harmony among international,
constitutional and statutory law.