Copyright v Human Rights: Balancing the rights of authors and the interests of people with print disabilities
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Graeme Innes Presentation to Australian Blindness Forum |
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Let me begin by acknowledging the traditional owners of the land on which we meet today.
I want to tell you two stories about Greg. They cover different phases of his life, but illustrate the problems that face us as people with print disabilities.
Greg is a university student, studying education. He's a creative kind of guy, and spends some of his spare time writing a series of children's introductory reading books. He submits these books as an assignment for part of his course. The lecturer marking the assignments likes the books so - quite inappropriately and probably unlawfully - shows them to the teacher at her daughter's infants school. The teacher thinks they are fantastic, photocopies them, and uses them to teach her class to read.
What has happened to Greg's work? His copyright has been breached. The result of this could be that his chances of selling these books are reduced. He certainly won't sell them to this particular infants school - they've already got them.
Greg has a vision impairment- in fact he's legally blind, having about 5% vision. He can't see print well enough to read it, even with enlarging software, so uses JAWS to do his work. He needs a particular textbook as part of his education course. However, because the university advised NILS quite late that the book was on the booklist, and because the copyright holder did not respond quickly to NILS request to provide an electronic copy of the book, Greg doesn't get this textbook until the end of the semester. He fails the particular subject as a result.
What has happened to Greg? His human rights have been breached - he has been discriminated against on the ground of his disability because he couldn't get access to the textbook at the same time as his classmates who could buy a print copy from the university bookshop.
This is the dilemma faced by many students and others with vision impairment today- getting access to materials in alternate formats in a similar time-frame to their sighted peers.
I want today to talk about the way that the Disability Discrimination Act works, the way that Copyright law works, and what the Human Rights Commission and others are doing to address this clash of rights.
The DDA is the key piece of Commonwealth legislation that relates to discrimination against 1 million Australians who are blind or vision impaired. The DDA is one of a number of legal instruments relating to human rights that is administered by the Human Rights and Equal Opportunity Commission.
The DDA makes it unlawful to discriminate against a person on the grounds of a disability. The objects of the DDA include eliminating, as far as possible, discrimination against people with disabilities, and promoting recognition and acceptance within the community that people with a disability have the same fundamental rights as the rest of the community.
The DDA uses a broad definition of "disability" that includes:
- Physical
- Intellectual
- Psychiatric
- Sensory
- Neurological, and
- Learning disabilities, as well as
- Physical disfigurement, and
- The presence in the body of disease-causing organisms.
The DDA sets out specific areas in which it is unlawful to discriminate. These areas include access to premises, accommodation, education, employment, the provision of goods, services and facilities, and the administration of Commonwealth laws and programmes. The definitions of "goods" and "services" in the DDA include financial and information services provided, for example, by banks and other financial institutions, retail shops, churches, cinemas, television stations, etc. In the area of education the provision of materials for the purposes of education is also covered. An organisation such as a government department that provides services is also liable for complaint under the DDA if those services are not accessible to people with disabilities.
The DDA defines two kinds of discrimination: direct discrimination is when a person with a disability is treated less favourably because of that disability. An example would be if a university refused to allow a blind student to enrol, or if a shop assistant refused to serve a person because they used a guide dog. Indirect discrimination refers to treatment that, on the face of it, is not discriminatory, but which has a disproportionate impact on people with a particular disability. An employer might require that job applicants have a driver's license, even though the job does not involve driving. Such a requirement would discriminate against people who are blind. Providing emergency service information only in printed form may also involve indirect discrimination, as it would not be accessible to many people who are blind or vision impaired.
The DDA recognises, that in certain circumstances, providing equitable access for people with disabilities could cause "unjustifiable hardship" for an individual or organisation.
Where a person with a disability believes they have been discriminated against, they can complain to the Commission, which will investigate the complaint and, where appropriate, attempt to conciliate a solution between the two parties. Where conciliation is not possible, the complainant may take their complaint to the Federal Court or Federal Magistrates Service, which have the authority to determine whether unlawful discrimination has occurred, and what constitutes "unjustifiable hardship". It is important to note that the defence of "unjustifiable hardship" is not available where a complaint relates to the administration of Commonwealth laws and programmes. This reflects the government's view that it has a particular responsibility to promote the objectives of the DDA and to eliminate discrimination against people with a disability.
The DDA works mainly through the complaints mechanism that I have just outlined, but there are other important aspects of the legislation. The Commission also has a more policy-oriented role, and is able to look at systemic issues of discrimination and try to find ways for them to be addressed. Hence our involvement in the copyright area.
So let's turn to copyright. In general it is unlawful to reproduce material, in any format, over which someone else has copyright. There are three exceptions to this rule.
The first is where the copyright holder - usually the publisher or the author - gives permission for the work to be produced. This is what a lot of alternate format producers have relied on over the years. But it is very slow to obtain, with people having to write on a number of occasions, and it is sometimes refused. Also, writing to publishers to seek permission for every book produced is a time-consuming process.
The second exception is the statutory licence for institutions assisting people with a print disability. The Copyright Act sets out special provisions applying to institutions assisting people with a print disability. A "person with a print disability" is defined as:
- a person without sight; or
- a person whose sight is severely impaired; or
- a person unable to hold or manipulate books or to focus or move his or her eyes; or
- a person with a perceptual disability.
Institutions assisting such people are entitled to make multiple copies of literary or dramatic works, sound recordings of such works, or Braille, large print or electronic versions of such works, and communicate them (by electronic transmission, for example by email, fax, Internet or broadcast), within certain limits and provided they meet the requirements of the Act.
In summary, the requirements are that the copies are made and communicated solely for the purpose of assisting persons with a print disability; and that the institution has provided a remuneration notice to the Copyright Agency Ltd (CAL), and complies with the requirements as to record keeping and marking copies.
There are limits on what may be copied and communicated under these provisions: in particular, institutions are not entitled to rely on these provisions where copies of the relevant versions are commercially available.
The limitations of this exception are threefold. Firstly, it only applies to institutions not to individuals with a print disability. Therefore, if I scan the latest John Grisham novel I am probably in breach of copyright. The second problem is the delay required to determine whether a book is commercially available, and the nature of that commercial availability. A novel may have been sold on tape, but if a university student is studying it for a course and cannot reference particular pages then there is a problem. The third problem, particularly in the digital age, is that the institution has to check commercial availability every time it makes a copy of the book available to someone with a print disability. This would mean that if a website of books were set up, commercial availability would have to be checked every time before a book was downloaded.
The third exception is fair dealing for research or study. The Copyright Act permits individuals to deal with copyright material for purposes of research or study without the copyright owner's permission, provided the dealing is "fair". For literary, dramatic, musical or artistic works, a dealing by way of reproduction is deemed to be fair if the amount reproduced is no more than an article from a journal or other periodical, or a "reasonable portion" of other types of work. A "reasonable portion" means 10 % of a published work of more than 10 pages, or one chapter, whichever is the greater.
The Copyright Act sets out a number of factors to consider in working out whether copying or otherwise dealing with more than a "reasonable portion" of a work would be a fair dealing for research or study. These are:
- the purpose and character of the dealing;
- the nature of the work or adaptation;
- the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price;
- the effect of the dealing upon the potential market for, or value of, the work or adaptation; and
- in a case where part only of the work or adaptation is reproduced -- the amount and substantiality of the part copied taken in relation to the whole work or adaptation.
Similar factors apply in relation to fair dealing with audio-visual items for research or study.
The problem with this exception is that it only applies to research or study, so to a quite limited segment of the print disability market. It is probably the case that the 10% limitations would not apply to a person with a print disability who was using the book for study or research.
So what is HREOC doing to address this problem? Early last year, the Commission was asked by Blind Citizens Australia and students with print disabilities to investigate ways of improving access to materials. We felt that the most effective way forward was to convene a forum that all Australian universities would be invited to attend, to initiate the development of strategies for providing curricular materials in accessible formats in a cost-effective, efficient, and needs-appropriate way.
The forum was held on May 29; approximately 90 people participated, representing most universities, university librarians, government departments, publishers, and students. Papers from the forum are on the HREOC website, as are its recommendations.
One key group of recommendations relates to publishing and copyright. One of the most exciting opportunities that the information superhighway makes possible is the use of source files from publishers as the basis for producing accessible-format versions of books. This would substantially reduce the time and cost of production, since there would be no need to scan the print book or type it into the computer. The forum's recommendations in this area envisage the creation of a national clearing-house of publishers' files to which producers would have access. This is clearly a medium- to long-term project, but it is one that will have significant benefits for students.
An associated recommendation calls for greater discussion of the ways in which copyright laws and regulations can be used to enhance, rather than restrict, access to materials by students and others with a print disability.
as a result of these recommendations the Commission has established a Copyright and Publishing Roundtable to work towards removing barriers to information access that have resulted from the operation of legislation and procedures in the area of copyright and publishing. The Roundtable has met several times. It is developing a set of frequently asked questions on copyright issues which will be published on HREOC and other appropriate websites. Further, it is forging links between publishers and users of alternate format material which will, I hope, lead to much greater preparedness by copyright holders to make their material available.
Our long-term goal is to establish a national clearing house of publishers' texts in electronic format that could be used by producers and individuals to streamline the conversion into accessible formats.
As a blind person and an avid reader, I am increasingly frustrated to think that over 13,000 books are already available in electronic format on a US website called www.bookshare.org. These books are only available to US citizens at present, but the Commission is hoping to change that through discussions with publishers and alternate format producers.
The work that the Commission is doing is founded on the aims and objectives of the DDA, that is, to eliminate disability discrimination as far as possible. There is much work yet to be done, but we are starting to make progress.
Just like Greg, as a blind person I want to be able to read the wide range of books that my peers read, and at the same time as they do. I recognise authors and publishers rights to be appropriately recompensed for the work that they do, but this should not prevent me from having equality in what I read and when I can read it.
Other speakers in this session will tell you that we are close to, or
already have, removed the technological barriers to equality in this regard.
HREOC is determined, through co-operative or legal means, to see that
the legal barriers are removed.
