Copyright and Publishing Roundtable

Friday, March 21, 2003

Human Rights and Equal Opportunity Commission

Hearing Room, Level 8

133 Castlereagh Street

Sydney

10am - 3.00pm

1) Welcome and arrangements for the meeting

Graeme Innes, AM, Deputy Disability Discrimination Commissioner, welcomed participants to the meeting, and expressed the Commission's pleasure that so much good will and commitment had been observed during the preparatory work leading up to the meeting. He noted that many problems impacting on people with a disability are systemic issues, and may not be most effectively resolved through individual complaints which, in the main, provide individual solutions that do not have wider applicability. However, in areas such as transport, access to premises, and access to information, making access for one person generally results in access for all. The Commission has been keen to work to address issues at a systemic level by developing partnerships with industry groups. One example was the joint development with the Australian Bankers Association of voluntary standards to make electronic banking services accessible to people with disabilities. The Commission looks forward to developing partnerships through the Copyright and Publishing Roundtable, and to making progress through dialogue and consensus.

2)Attendance and apologies

Present:

Graeme Innes (HREOC)

Bruce Maguire (HREOC)

Darren Fittler (Blind Citizens Australia)

Libby Sturrock (National Information and Library Services, NILS)

Paul Stubing (Director, Information and Policy, Australian Vice-Chancellors' Committee, AVCC)

Nicole Meehan (Acquisitions Editor, Humanities, Science and Health, Pearson Education Australia)

Janice Fewin (Australian Publishers Association)

Barton Hoyle (Legal Officer, Copyright Law Branch, Commonwealth Attorney-General's Department)

Melissa Willan (Copyright Agency Limited)

Libby Baulch (Executive Officer, Australian Copyright Council)

Elisabeth Wegener (Round Table on Information Access for People with Print Disabilities Inc.)

Apologies:

Josie Howse (NSW Department of Education and Training)

Jane evans (Round Table on Information Access for People with Print Disabilities Inc.)

Bet Dracoulis, National Library of Australia

3) Acceptance of the agenda

The Agenda was accepted as circulated, with the exception that the item elating to the DDA complaint against HarperCollins was deleted because the lodgement of papers in the Federal Court was still pending, and so discussion of the complaint was still subject to confidentiality restrictions.

4) The Roundtable

a) Background, including reference to the Forum on Accessible Tertiary Materials

As a result of a number of enquiries received early in 2002, combined with DDA complaints lodged against the University of Tasmania, the Commission decided to convene a national forum to consider ways of making curricular materials more accessible for university students with a print disability. The forum was held on May 29, 2002, with attendance of 35 of the 39 Australian universities as well as the Australian Vice-Chancellors' Committee, government departments, consumer organisations and other stakeholders. On May 28, a pre-forum session on copyright and publishing issues was held. The forum developed a number of recommendations, including several dealing with the related areas of copyright and publishing as they affect people with a print disability.

The Copyright and Publishing Roundtable is thus partly a result of the Forum on accessible Tertiary Materials.. However, its establishment also reflects awareness throughout the disability sector that some longstanding issues, as well as the challenges and opportunities created by new and emerging information technology, can best be addressed through collective discussion and action.

b) Name:

The proposed name, "Copyright and Publishing Roundtable", was accepted.

c) Membership:

Nicole Meehan indicated that Pearson Education Australia was happy to b an ongoing member of the Roundtable. Barton Hoyle advised that Gabrielle Mackey would represent the Attorney-General's Department at future meetings. The meeting agreed that observers would be welcome to attend, provided that sufficient space is available.

There was discussion about the desirability or need to broaden the current Roundtable membership to include representatives from publishers of music, the school and TAFE/VET sectors, and other disability groups such as people with a physical disability. There was agreement that a larger group may make it more difficult to achieve expeditious progress, and that the ready availability of Roundtable minutes on the Commission website would provide a satisfactory avenue for non-members to become aware of the issues that were being discussed and to provide feedback and comment where they felt inclined to do. It was added that there will be flow-on effects to other groups from actions taken by the Roundtable irrespective of membership of those groups, because many of the issues that will be dealt with by the Roundtable have a broader focus than just one group.

The membership of the Roundtable was therefore confirmed as follows:

Human Rights and Equal Opportunity Commission: Graeme Innes, Bruce Maguire

Commonwealth Attorney-General's Department: Gabrielle Mackey

Blind Citizens Australia: Darren Fittler

Australian Copyright Council: Libby Baulch

Australian Publishers Association: Janice Fewin

Copyright Agency Limited: Melissa Willan

Australian Vice-Chancellors' Committee: Paul Stubing

National Library of Australia: Bet Dracoulis

National Information and Library Service (NILS): Libby Sturrock

Round Table on Information Access for People with Print Disabilities Inc.: Jane Evans

d) Secretariat support

HREOC noted that its Disability Rights Unit has very limited resources to cover disability-related issues nationwide. It aims, wherever possible, to assist in establishing procedures that allow committees such as the Roundtable to become self-sustaining. HREOC is able to continue to convene the Copyright and Publishing Roundtable, and to circulate relevant material for the present, however, it would appreciate assistance with minute-taking. It was agreed that this task would be rotated among members, and that at the end of each meeting it would be decided who would take minutes at the next meeting.

e) Purpose and Terms of Reference

The circulated Terms of Reference were accepted without amendment. HREOC agreed to circulate the recommendations from the forum on accessible tertiary materials, as not all members had received them and they are cited in the Terms of Reference.

f) Decision-making and voting

The Roundtable's basic purpose is to work towards the achievement of change in the areas of copyright and publishing in order to make materials of all kinds more accessible to people with a print disability. In this sense, the Roundtable does not merely have an advisory function, even though it has no authority to bind its members, and that members would need to use their own internal processes for operationalising decisions that the Roundtable might make. The Roundtable is a cooperative enterprise, and as such will proceed and make decision based on consensus.

g) Duration

It was agreed that the duration of the Roundtable would depend on the rate of progress, and that an annual review of the Roundtable's purpose and achievements is appropriate.

h) Reporting

HREOC noted that it is customary for minutes and materials relating to groups in which it is involved, such as the Roundtable, to be made available on the HREOC site once their content has been approved by members. It is, of course, open to members to request that all or part of a discussion on a particular item be unminuted.

i) Circulation of minutes, agendas and related materials to members and others

HREOC will circulate material, and post minutes and other appropriate material on its website.

5) Accessible formats: an overview (see attached information)

HREOC will circulate the appendix to the discussion paper that was released prior to the forum on accessible tertiary materials, as this provides an overview of accessible formats. It was noted that digital formats, such as digital audio and electronic texts, have been developed as technology has advanced, and that the traditional audio-cassettes are fast being replaced by electronic formats as more effective means of studying information. However, mainstream digital formats are not always accessible, as a result of the use of digital rights management (DRM) techniques, for example, the use of passwords to protect PDF files. In the Commission's view, PDF is not an accessible format, even though some people who are blind or vision-impaired and who have the appropriate software can access the text of some PDF files. In any case, encryption and password-protection can prevent access even in those cases where it might otherwise be possible.

6) Brief history of the development of co-operation between publishers, copyright owners and people with a print disability (Bruce Maguire)

There has been a history of good co-operation between copyright regulators, the publishing industry and the print disability sector. Much of this co-operation has been mediated by the Round Table on Information Access for People with a Print Disability Inc., which was formed in 1981 by producers of accessible-format material as a means of fostering co-operation and collective lobbying. During the early- to mid-1990s, APA, CAL, and the Australian Copyright Council regularly attended meetings of the Round Table, and there was in-principle agreement by APA that publishers could provide electronic files to producers of accessible-format materials such as Braille, large print and E-text, to expedite the production process. There was discussion of various legislative anomalies, such as section 135ZQ of the Copyright Act (amended 1989) that seemed to require producers to destroy masters within three months. As a result of supporting submissions from the copyright and publishing industry, the limitation was removed in the amendments of 1998. In recent years there has been less direct contact between the Round Table and the copyright/publishing sector. It is hoped that the present Roundtable will once again see strong and effective links between the two sectors.

7) Implications of the DDA for the publishing industry (Graeme Innes)

HREOC presented a brief overview of the DDA. The Disability Discrimination Act 1992 (DDA) makes it unlawful to discriminate against people on the ground of disability in certain areas, including access to premises, education, employment, and the provision of goods and services. The Act uses a broad definition of disability, and defines two types of discrimination, direct and indirect. An example of direct discrimination would be requiring a person in a wheelchair to use stairs to access a building, or requiring a person with a print disability to use a print book in order to study. Indirect discrimination is treatment that is, on the surface, not discriminatory, but which nevertheless has a disproportionate negative impact on people with a particular disability. For example, requiring a driver's license as the only proof of identity discriminates against people who are blind and hence cannot drive (obviously, some requirements will be inherent to a particular task, and will thus not be discriminatory, for example, a bus driver requires a driver's license). Both direct and indirect discrimination can apply in the provision of information to people with a print disability.

The DDA operates mainly through a complaints process whereby individuals who feel that they have been discriminated against can lodge a complaint with the Commission, who will attempt to conciliate a solution between the parties. Where conciliation fails, the person making the complaint may take the complaint to the Federal Court. The court has the power to make legally enforceable orders, and to determine what constitutes unjustifiable hardship (which is a possible defence to a complaint alleging discrimination).

Discrimination in the area of information access is generally systemic, in that if a book is not accessible to one person with a print disability, it probably will also not be accessible to other people. The Copyright and Publishing Roundtable thus has a systemic focus that goes beyond individual complaints.

8) International developments in copyright and publishing affecting people with a print disability

a) The uk Copyright (Visually Impaired Persons) Bill

The UK Copyright (Visually Impaired Persons) Bill was introduced into the House of Commons in July 2001, and has now become law (November 2002). The law allows an individual with a vision impairment to make a single accessible copy of a book or periodical without the need to seek permission from the publisher or copyright holder, provided that they have lawful possession or use of an original from which the accessible copy is to be made. Organisations may make and distribute multiple accessible-format copies, but they must comply with a licensing scheme if one exists. The bill provides safeguards so that authors receive due acknowledgement but that licensing schemes do not impose excessive conditions. The text of the Act is online at http://www.hmso.gov.uk/acts/acts2002/20020033.htm.

b) The US Instructional Materials Accessibility Act (IMAA)

The IMAA was put before the US Congress in 2002. The aim of the IMAA is to ensure that K12 students with a print disability have access to instructional materials in formats they can use at the same time such materials are provided to students without disabilities by requiring US states to develop and implement state-wide plans designed to meet this objective. The Act was not passed before Congress rose in late 2002, but it is hoped that its reintroduction this year will lead to a speedy passage through the current Congress.

The IMAA would require publishers of instructional materials to prepare well-structured, standardised electronic files in a prescribed format corresponding to the print instructional materials they publish to facilitate the production of accessible-format versions. The Act would also establish and fund a national repository to be responsible for the receipt, cataloguing, storage and distribution of the standardised electronic files provided by publishers.

More detailed information about the IMAA is available at http://www.afb.org/info_document_view.asp?documentid=1709

9) Reports from members about significant current activities with particular reference to print disability

CAL reported on progress in developing their database of materials produced under the Statutory License provisions of the Copyright Act by organisations producing accessible-format materials. The number of records is increasing, and the database can be searchable on several fields. The aim of the database is to minimise duplication and to allow producers to locate a greater range of materials in particular subject areas, thus benefiting students with a print disability.

10) Discussion of relevant recommendations from forum on accessible tertiary materials (see attached list of recommendations):

It was noted that the overarching recommendation from the Forum Working Group that considered copyright/publishing issues was that a group be established to develop strategies for making progress, and hence the establishment of the Copyright and Publishing Roundtable fulfils this recommendation, notwithstanding that the Roundtable has a broader focus than just tertiary materials.

It was agreed that specific issues arising from the other recommendations of the Copyright and Publishing Working Group are covered elsewhere on the agenda, and hence did not require further discussion in the context of the Forum recommendations.

11) Copyright and Publishing: Key issues affecting people with a print disability

There was general discussion about how best to consider these issues. It was agreed that a valuable starting-point would be to compile a list of questions and answers that have been or may be asked in regard to copyright/publishing and print disability. This FAQ would include questions that have been answered in the past but where the information may not have been widely circulated, as well as questions that have no clear answers at present. The compilation of this FAQ will provide direction as to which issues should be addressed by the Roundtable.

HREOC agreed to circulate an email asking for questions. This email will be posted to various email lists, such as the Austed-L list, the Round Table listserver, and the Vip-L list. Australian Copyright Council agreed to act as the collection point for these questions, email, info@copyright.org.au. Submissions containing questions should use the subject line "FAQ for Copyright and Publishing Roundtable". Discussion then took place on the specific issues that had been placed on the agenda:

a) Limitations to the Statutory Licence exemptions in Section 135ZP-ZS of the Copyright Act

i) For producers of accessible-format materials

ii) For universities assisting students with a print disability

b) Cataloguing and sharing of materials produced under Statutory Licence

The database being developed by CAL would serve as a useful resource for universities, and the Roundtable agreed that it is an important initiative.

c) Procurement and use of electronic versions of texts to facilitate production of accessible-format versions

The possibility was raised of APA developing a policy for circulation to its members detailing what can reasonably be provided, and how this might best occur. It was noted that there is currently considerable variation in the way publishers respond to such request, and it was agreed that standards or guidelines in this area would be beneficial. It was agreed that the FAQ could include information about this area.

d) Compilation of a directory of publishers' staff with responsibility for handling requests for electronic versions of texts

APA agreed to make publishers aware of their obligations under the Copyright Act and the DDA, and to suggest that publishers designate a person to have responsibility for dealing with issues related to print disability.

e) Uncertainty about the legality of individuals with a print disability scanning books for their own or shared use

Questions about this will; be included in the FAQ, and there maybe a need for further work to clarify the current situation and develop guidelines or a code of practice to provide certainty for individuals.

f) Uncertainty about the legality of individuals and institutions using procedures for circumventing Digital Rights Management when copyright material would otherwise be inaccessible.

It was agreed that this is another issue for inclusion in the FAQ, and on which further work may be necessary for the Roundtable.

It was noted that the Department of Education, Science and Training (DEST) are encouraging universities to procure information such as journals in electronic format. AVCC agreed to investigate the possibility of linking DEST systemic infrastructure funding to a requirement that such electronic materials be accessible to people with a print disability (for example, that there be a way of bypassing any encryption of PDF or other files).

g) Provision of electronic versions of texts to individuals with a print disability by publishers

As above.

h) Development of national repository of publishers' texts

It was agreed that further discussion of this issue be deferred until the next meeting.

i) Access to material contained in the US-based Bookshare.org repository

It was noted that the WebBraille service operated by the Library of Congress is also only available to US citizens. HREOC agreed to approach the relevant bodies in the US with a view to establishing what would be needed in order for Bookshare and WebBraille access to be made available to Australian people with a print disability.

12) Celebrations to mark the 10th anniversary of the passage of the DDA (March 2003)

HREOC reported that a series of well-attended and successful forums was held across in Australia to mark the 10th anniversary of the promulgation of the DDA. A publication showcasing achievements made by using the DDA was also launched. It is available online at http://www.humanrights.gov.au/disability_rights/dont_judge.htm, as well as in print and accessible formats.

13) Future meetings:

a) Frequency:

It was agreed that the frequency of meetings will depend on the progress that is made. As a first step, it was suggested that the following timeline be used in preparation for the next meeting:

Submission of questions for inclusion in FAQ by the end of April 2003.
Circulation of questions to Roundtable by May 9.
Responses from Roundtable members by May 23.

b) Venue:

It was agreed that Sydney would, in general, be the preferred venue for meetings.

c) Funding

BCA may require funding to allow its representatives to attend meetings. If the venue is changed, it may be necessary for BCA to have alternate representation.

14) Next meeting

Friday May 30, 10am - 3pm, Human Rights and Equal Opportunity Commission.

ACTION List

1) Australian Copyright Council to collate questions for FAQ

2) APA to prepare information for circulation to members regarding responsibilities under the DDA and Copyright Act, and suggesting that there should be designated contact person for dealing with print-disability issues such as requests for electronic files.

3) AVCC to investigate the use of DEST infrastructure funding to encourage universities to purchase electronic journals etc. that are or can easily be mad e accessible, e.g., through removal of digital rights management.

4) CAL to continue working on database of materials produced under Statutory Licence.

5) HREOC to circulate requests for questions to form the basis for the FAQ

6) All Members to assist in circulating request for questions and compile answers.