Nishant Kumar
Abstract: When a company slides near insolvency, Indian law places its directors at a statutorily conflicted position. Section 166 of the Companies Act, 2013 (“CA 2013”) codifies directorial duty to shareholder primacy and a loosely defined set of stakeholders, with creditors being absent from the list. while Section 66(2) of the Insolvency and Bankruptcy Code, 2016 (“IBC”) imposes personal liability for failures to protect creditor interests ex post facto, i.e. once insolvency proceedings have commenced. The paradox is therefore structural, since the sole creditor-protective provision is inaccessible during the very period in which protection is most required. This article argues that creditors must be expressly incorporated into Section 166(2). It further argues that when creditor interests are considered, balanced or treated as paramount, it must be left to judicial discretion on the factual matrix of each case, rather than being drawn by a single line.
Introduction
Education is a basic right, but many people with disabilities struggle to access learning materials. This issue mainly stems from copyrighted educational content being hard to reach. Although digital technology makes it easier to create accessible resources like texts that work with screen readers or videos with audio descriptions; copyright laws often get in the way.
In India, the existing laws, particularly Section 52(1)(zb) of the Copyright Act, 1957, along with international agreements, treat accessibility as an exception to copyright rights. I believe this approach is flawed. It positions access as a privilege instead of a basic right, which makes it tough and expensive for people with disabilities and the organizations that support them to convert inaccessible content into formats they can use after it’s published. A rights-based model, by contrast, would legally operate by imposing a positive duty on publishers to ensure works are ‘born accessible,’ shifting the framework from one of permissive exceptions to mandatory compliance at the point of creation. This methodology reinforces what scholars have termed a “ book famine” and reinforces a tolerance paradigm where the needs of disabled people are treated as a secondary concern. This system places an unfair burden on the very people it is meant to serve and fails to address the root of the problem: the creation of inaccessible content in the first place.
The paper argues that the exception-based model is an inefficient and inadequate solution that fails to guarantee substantive equality in education. It does so by first, exploring the Indian provisions and Marrakesh Treaty; second, analysing the exception-based model and how it is inefficient and inadequate; and third, proposing a right-based model as the necessary solution.
Current Legal Frameworks
The legal rules governing access to copyrighted works for disabled individuals in India are shaped by both a significant domestic law and a key international agreement. While both have created vital opportunities for access, they are built on a similar reactive model.
A. Indian Copyright Exception
India’s primary legal measure for accessibility is found in Section 52(1)(zb) of the Copyright Act, 1957.
This provision was introduced through an amendment in 2012, a proactive step taken a year before the international community finalized its own treaty on the matter. The clause creates an exemption from copyright infringement, making it legally permissible to convert a work into a format that a person with a disability can use. It establishes a two-track system. The first track empowers “any person” to make an accessible copy to help an individual with a disability for personal, educational, or research needs. This allows for decentralized, informal action, such as a student helping a classmate. The second track covers “any organisation” that works for the benefit of disabled persons. This enables larger, more formal efforts by non-profits, libraries, and educational institutions. It applies to “persons with disability” generally, without restricting the benefit to a narrow category like visual impairment. This ensures the law can support people with a wide range of needs. Similarly, the provision permits the creation of “any accessible format.” It avoids limiting the exception to older formats like Braille and ensures that it remains relevant as technology evolves, covering digital texts for screen readers, audiobooks, and other emerging formats.
While the provision is generous in scope, it also contains important safeguards to balance the needs of disabled users with the interests of copyright holders. For organizations operating under this exception, the law is clear that the accessible copies must be provided on a non-profit basis. They are permitted to recover only the costs associated with production, which prevents them from profiting from the exception.
However, the provision requires these organizations to take “reasonable steps” to ensure two things: first, that the copies are used exclusively by persons with disabilities, and second, that they do not leak into ordinary commercial channels. This helps to protect the primary market for the work. This non-commercial focus is what separates the exception in Section 52(1)(zb) from the separate pathway for for-profit activity established under Section 31B, which requires a compulsory license. Under Section 31B, a commercial entity can apply to the Copyright Board for a license to publish a work in an accessible format. The Board is required to process such applications quickly, with a goal of making a decision within two months. This creates a regulated pathway for businesses to enter the accessible book market. It allows for the possibility of a sustainable, commercial ecosystem for accessible publishing, which could increase the quantity and variety of materials available.
B. Marrakesh Treaty
The international counterpart to India’s domestic law is the Marrakesh Treaty. This landmark agreement provides a global legal framework designed with the express purpose of ending the worldwide “book famine ” (See here). It was created as a direct response to the fact that very few published works are ever made available in formats that are accessible to people with print disabilities. The treaty functions as a coordinated international effort to address this crisis, which has long been understood not just as a technical problem, but as a matter of fundamental human rights.
The core function of the agreement is to require signatory nations to put in place a specific limitation or exception within their national copyright laws. This exception permits the production and distribution of works in accessible formats, such as braille, audiobooks, and large print texts. The treaty specifies who can benefit from this legal allowance. It defines them as persons who are blind, visually impaired, or have another print disability that prevents them from reading conventional books (See here). Besides, it defines a clear category of “authorized entities,” which are organizations like libraries and non-profits that are officially empowered to carry out the work of converting and sharing these materials without needing to seek permission from copyright holders.
One important aspect of this agreement is that it sets up a way for countries to share accessible copies of books across borders. This is a game-changer because it saves time and effort by preventing the need to translate the same book into different languages in multiple countries. However, the full realization of this potential is not automatic; it remains heavily dependent on domestic implementation of the treaty and the institutional capacity of authorized entities to manage these international exchanges. Now, an accessible version made in one country can be legally shared with another, helping to build a global digital library. This is especially beneficial for developing countries, as it provides them access to many works that are already available elsewhere.[1]
The treaty reflects a strong agreement among countries that we need to balance accessibility with the rights of copyright holders (See here). It serves as a meaningful legal solution to address a long-standing issue where the publishing industry has failed to meet the needs of many people.[2] However, despite being a monumental step forward, the treaty’s structure is still, in essence, that of an exception. It provides a solution that operates after an inaccessible work has been published. Like the Indian law, it is a reactive measure, and it is this shared structural characteristic that ultimately limits its ability to deliver true substantive equality.[3]
The Inadequacy of the Exception-Based Model
The legal framework established in India and the Marrakesh Treaty are essential means for access, but the model they are based on still has issues that prevent them from achieving their real aim. The system of treating access as an exception is inherently inefficient and inadequate because it is reactive, places an unfair burden on users, and fails to address the core problem. It operates within what has been described as a “tolerance paradigm,” where access is treated not as an essential right, but as a reluctant allowance granted by the copyright system (See here). This paradigm frames the disabled person not as a rights-holder, but as a beneficiary of state benevolence, where access is contingent on specific, narrow exemptions rather than guaranteed by design (See here). Such an approach is intrinsically at odds with modern international human rights law, which calls for positive, affirmative actions to dismantle systemic barriers, rather than simply permitting workarounds after those barriers have already been erected. When access is treated as an afterthought in publishing, it suggests that the needs of disabled individuals aren’t viewed as important.
This flawed structure is not an accident but is the product of a long-standing historical bias (See here). Copyright law has a history of placing the entitlements of owners above the needs of persons with disabilities, and the permission-based nature of copyright has been described as a harmful and unfair obstacle to disability policy. For centuries, copyright statutes from the Statute of Anne to modern acts were drafted with the ‘average’ user in mind, systematically excluding those who could not access standard print (See here). From this perspective, the exceptions are not a significant change but only a modest correction for a system that is already tilted too far in one direction.[4] It does not re-orient copyright policy to place accessibility at its center, but instead keeps it at the margins. This historical context reveals that the exception model was not designed for proactive inclusion but as a minimal response to a pre-existing exclusionary system.
The purpose of a disability access exception needs to be understood correctly. It is not an act of charity but one of the essential policy functions of copyright law.[5] These exceptions are principled tools meant to achieve specific goals, such as assisting disabled individuals and fixing failures in the market.[6] The World Blind Union estimates that less than 7% of published works in developed countries, and less than 1% in developing countries like India, are available in accessible formats (See here). Since the market has clearly failed to provide accessible materials, and the goal of inclusive education is so important, a simple exception is not a strong enough intervention to solve the problem.[7]
As a result, the current framework is structurally built in a way that severely restricts its capacity to deliver substantive equality. It assigns the whole burden o f fixing a system failure to the individuals and organisations that are most impacted by it. Furthermore, administrative mechanisms like Section 31B of the Indian Copyright Act, designed to allow compulsory licensing for commercial access, have proven procedurally burdensome and rarely utilized, leaving non-profits to bridge a gap that is too wide for voluntary efforts alone. A true right cannot be realized through a system of conditional permissions that requires the rights-holder to constantly seek remedies. The exception model, by its very design, does not only fail to address the book famine; it perpetuates the core inequality by treating a fundamental right as a logistical problem for the marginalized to manage. A different approach is therefore not just preferable, but necessary.
Analysis through the lens of Freedom and Capabilities
The human capabilities approach provides the right framework to understand why the exception-based model is flawed. This theory argues that a just society should be measured not by the resources its people have, but by their effective opportunities to live the lives they value (See here). It makes a crucial distinction between functionings-the things a person actually does or becomes, like being educated-and capabilities, which are the real and substantive freedoms a person has to achieve those functionings (See here). A capability is the set of “alternative combinations of functionings from which the person can choose one combination ” (See here). The objective of a just society, from this viewpoint, is not simply to distribute resources or guarantee outcomes, but to broaden the scope of human capabilities.
Essentially, the framework when referred to accessible books reveals the limitation of the exception model in a very clear way. In this case, the most desirable function is “ being educated.” After a significant period and a lot of work, the exception model could allow a disabled person to have this function with a single text. However, it severely curtails their overall capability to be educated. Consider the example of Jatin Shah, a visually impaired student who studied at Pune’s Symbiosis Institute. While his sighted classmates could stay abreast of their coursework by simply walking into the college library, Jatin regularly faced a 20-day delay. To access a single reference book, he had to procure the physical copy, send it to the Xavier’s Resource Centre for the Visually Challenged (XRCVC) in Mumbai, and wait for the organization to manually scan and convert the text into an accessible format under the copyright exception (See here). Even if Jatin eventually read the book and passed his exams, thereby achieving the functioning of being educated, his capability was severely compromised. A student with a visual impairment does not have the same substantive freedom to learn as their peers. Their access to knowledge is conditional, dependent on others, and often delayed. Their range of available opportunities is smaller and more difficult to access. They cannot casually browse a bookstore, pick up a new title that sparks their interest, or instantly download a required reading for a course. Their freedom to learn is fundamentally unequal. It is important to recognize that “the freedom to have any particular thing can be substantially distinguished from actually having that thing (See here).” A student who has to wait weeks for a textbook to be converted is not on the same level of educational freedom as the one who can access it instantly. The legal exception offers a theoretical path, but it is a restricted and inferior opportunity, which means it is a diminished capability.
The problem goes deeper than just limited opportunities, because the process itself is unfair. The capabilities theory separates freedom into two parts: the “opportunity aspect” and the “process aspect.”[8] A just system must be “alive both to the fairness of the processes involved and to the equity and efficiency of the substantive opportunities that people can enjoy.”[9] Here, the exception model fails completely. The method it creates for access is inherently unfair.[10] It is a segregated, remedial system that treats disabled users as an afterthought, forcing them to use a separate, more difficult procedure to get the same materials that are easily available to everyone else. This is a clear violation of “process equity ” (See here) In the Indian legal context, this structural unfairness directly offends the constitutional guarantees of substantive equality under Article 14 and the right to live with dignity and access education under Article 21 (See here). Furthermore, it contradicts the overarching mandate of the Rights of Persons with Disabilities (RPwD) Act, 2016. Rather than treating access as a secondary exception, the RPwD Act legally guarantees non-discrimination (Section 3) and places a positive obligation on the state and establishments to ensure all print, audio, and electronic media are available in accessible formats (Section 42) (See here). This connects directly to the idea that access is a core right, not just a technical issue (See here). The right to take part in cultural and educational life demands a process that is fair and dignified, not one that is simply allowed as a secondary exception.
The Path Forward: A Right-Based Model
The most effective and clearest solution to the limitation of the exception model is a change of the whole approach. This approach shifts us from reacting to problems as they arise to preventing them from the start. The idea is to create a requirement for all publications to be ‘born accessible.’ This would mean that publishers must provide an accessible version right from the moment a work is created. By doing this, we can tackle the root cause of the book famine, which is the lack of accessible content from the outset. This requirement is a crucial step in breaking down systemic barriers, treating accessibility as a standard part of publishing, not just an add-on for special cases. It emphasizes a more inclusive approach from the beginning.
For this approach to operate in practice, the mandate would need to be supported by clear regulatory standards. Legislatures could require publishers to produce works in formats that comply with recognised accessibility guidelines used in digital publishing, such as accessible EPUB formats or other internationally accepted accessibility standards. Compliance could be monitored through mechanisms such as accessibility declarations or deposit requirements submitted to a designated regulatory authority, for example a national copyright office or a specialised accessibility body. Periodic audits or verification by authorised entities could further ensure that publishers adhere to these standards. At the same time, a limited safe-harbour mechanism could protect publishers who demonstrate good-faith compliance but encounter technical errors, provided such issues are corrected within a reasonable period.
A ‘born accessible’ mandate directly expands the capability to be educated, not just the difficult path to the functioning(See here). It provides immediate, equal access, which enlarges the set of real opportunities available to people with disabilities. It ensures that the freedom to have educational materials is as important as eventually having them. It also corrects the deep procedural unfairness of the current system. By creating a single, inclusive process for the dissemination of knowledge, it eliminates the segregated, remedial track for certain users. This change would finally achieve the “process equity” that the exception model denies.
It is important, however, to acknowledge the potential concerns that may be raised against a mandatory “born accessible” framework. One common argument is that imposing such obligations may increase production costs for publishers, particularly smaller publishers with limited technological capacity. Some may also argue that accessibility requirements could interfere with copyright owners’ control over the format and distribution of their works. While these concerns are not insignificant, they are not insurmountable. First, modern digital publishing workflows already rely on structured formats such as EPUB, which can incorporate accessibility features with relatively minor additional cost when implemented at the production stage rather than retrofitted later (W3C 2018). Second, regulatory frameworks can include proportionate safeguards, such as phased implementation, technical guidance, and limited safe-harbour protections for publishers that demonstrate good-faith compliance but encounter technical errors. Finally, the broader legal context increasingly recognizes accessibility as a positive obligation rather than a discretionary accommodation. Instruments such as the UN Convention on the Rights of Persons with Disabilities and the Rights of Persons with Disabilities Act, 2016 require states and institutions to remove systemic barriers to information and education. When viewed in this context, the burden on publishers must be balanced against the fundamental rights and equal participation of persons with disabilities in cultural and educational life.
Conclusion
The exception-based model as seen in Indian copyright law and the Marrakesh Treaty, albeit a step in the right direction, is an imperfect and insufficient answer to the book famine. It keeps a “tolerance paradigm” that drags the whole access lag considerably on those who are excluded. By identifying a fundamental right as a secondary issue, it is unable to provide true equality. Hence the move to a rights-based, ‘born accessible’ mandate is not only a necessary change but also an essential evolution.
The paper has argued that the current framework is not just ineffective but also unfair. It fails to truly showcase the abilities of people with disabilities, making reading complicated and limiting their freedom to learn equally. Additionally, it creates an uneven playing field, disrupting the fairness that is essential for a just system. The idea behind the ‘born accessible’ mandate is that it encourages accessibility right from the start of the printing process, rather than treating it as an afterthought. This shift promotes individual dignity and aids our collective progress, turning copyright law into a tool for genuine inclusion instead of a hindrance.
[1] Ruth L Okediji, ‘Reframing International Copyright Limitations and Exceptions as Development Policy’ in Ruth L Okediji (ed), Copyright Law in an Age of Limitations and Exceptions (Cambridge University Press 2017) 429.
[2] Pamela Samuelson, ‘Justifications for Copyright Limitations and Exceptions’ in Ruth L Okediji (ed), Copyright Law in an Age of Limitations and Exceptions (Cambridge University Press 2017) 12.
[3] Jerome H Reichman, ‘The Limits of “Limitations and Exceptions” in Copyright Law’ in Ruth L Okediji (ed), Copyright Law in an Age of Limitations and Exceptions (Cambridge University Press 2017) 292.
[4] ibid.
[5] Pamela Samuelson, ‘Justifications for Copyright Limitations and Exceptions’ in Ruth L Okediji (ed), Copyright Law in an Age of Limitations and Exceptions (Cambridge University Press 2017) 12.
[6] ibid.
[7] Pamela Samuelson, n (15), 12.
[8] ibid.
[9] Amartya Sen, n (18), 156.
[10] ibid.
Nishant Kumar is a Fourth-Year B.A. LLB Student at National Law School of India University, Bangalore with a keen interest in Intellectual Property Rights, Constitutional law, and socio-legal studies.