Copyright v Human Rights:
Balancing the rights of authors and the interests of people with print
disabilities

Graeme Innes Deputy Disability Discrimination Commissioner Human Rights And Equal Opportunity Commission Presentation to Australian Blindness Forum 3 October 2003

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.