Why do blind people need copyright exemptions?
In this third posting in my series on access by blind people to everyday published information, I will briefly discuss the concept of copyright exemptions and explain why they are needed.
The starting point is to understand how blind people access information. Because publishers almost never publish books in an accessible format, it falls essentially to the mostly voluntary blindness agencies around the world to apply their own resources to create accessible versions of books. According to the World Blind Union’s Right to Read campaign, limited resources mean that only some five per cent of books are accessible to blind people. In New Zealand, the primary agency that produces books in accessible formats for blind people is the Royal New Zealand Foundation of the Blind. They take a variety of everyday books and magazines and produce copies in accessible formats such as audio (talking books), braille, large print and DAISY (DAISY is an open standard for accessible digital information developed and maintained by the DAISY Consortium). But the Foundation is small by world standards, so it obtains much of its accessible format materials from larger cooperating blindness agencies around the world.
Regardless of the format or the method of producing it, the act of producing an accessible version of a published work generally involves making a copy of that work. Therefore, it is mainly the law of copyright that governs what agencies like the Foundation can and can’t do when they make accessible copies of published works. In the past, the process would start with the blindness agency writing to the publisher to request permission to make the copy. Generally, but not always, permission would be granted, but there would often be a lengthy delay. Of course, making that accessible copy without permission would be a violation of copyright law.
In 1994, New Zealand became one of the first countries in the world to provide a copyright exemption clause directly in law to allow registered agencies to produce accessible versions of published works without infringing copyright. Under section 69 of our Copyright Act, agencies such as the Foundation can make accessible copies of published works without obtaining permission. The exemption means that as long as they follow the procedures detailed in that section of the Act, they can make these copies without infringing copyright. This clause was not without its critics, and I am sure that some detailed research into the relevant papers at the time would reveal some notable authors who publicly expressed their opposition. Perhaps they thought blind people were wanting a free ride, something for nothing, but I suspect that the opposition that was expressed at that time was simply based on the principle that the copyright holder has the ultimate right to retain control of their work and this exemption would have been seen as a violation of that principle.
But that was fifteen years ago and a lot of water has gone under the bridge since then. Now, all the major countries we relate to in New Zealand have similar exemptions. In the past, when the blindness agencies obtained permission directly from the copyright holders, that permission could be given so the agency involved could make copies for blind people throughout the world, or in English speaking countries, etc. So the blindness agencies were generally able to exchange accessible format materials with relative ease. Now that permission is generally not needed, the agencies making accessible format copies under the relevant exemption in their country are generally only allowed to provide those copies to blind people in the country they serve.
Ironically, this causes a serious problem for small countries like New Zealand. It is now much harder, and sometimes just impossible, to get accessible books from the big agencies in other countries. They can now plan their production runs without having to worry about getting permission from the copyright holders. If New Zealand wants to buy from them, presuming they are willing to sell, it is generally required that the agency in New Zealand must produce a letter from the copyright holder giving permission to the selling agency to make and sell the copies we need. But even if that permission can be obtained, the selling agency might not be in a position to schedule production of the copies we need without significant expense, which the Foundation has to pay for.
Another problem arises because accessible formats nowadays are conveyed digitally and are essentially accessible to sighted people. In the past, talking books were recorded onto tape in a non-standard format so they could only be played on talking book players that would generally be only available to blind people. Braille was produced directly on paper and would only be readable to someone who knows how to read braille. The accessible books we used in the past had little value to sighted people. Nowadays, many talking books are now produced on CD and other formats and are readily playable on everyday MP3 players and the like. Braille might still be read on paper but the files are produced on computer and can be easily copied and decoded to get back to the original print which can be read without any knowledge of braille. This all means that the accessible format copies we use nowadays are valuable to the general public. Publishers now see these copies as posing a significant risk because end users can easily get at the content and freely copy it on the internet. No longer do blind people enjoy the protection that was inherent in the specialised formats we used to use.
I should point out here that it is perfectly feasible to use standard encryption and security technology to prevent illegitimate copying or at least to discourage it. Some blindness agencies already do this. But managing the technology can be problematic, particularly given the increasing variety of players we can use today, and no such technology is completely secure, so it is certainly not universally used.
I’m sure you can see now how complicated this all gets. The simple fact is that it is now significantly more difficult and expensive for the Foundation in New Zealand to obtain accessible format books from other agencies, and in some cases the books are just not available at all. You would think that today’s technology would make it easier, but in some ways it is proving to be counter-productive.
One solution is seen by many to be the adoption of some sort of treaty or agreement by the World Intellectual Property Organisation (WIPO) that would provide a means for blindness agencies around the world to exchange accessible format copies of books. Agencies such as the World Blind Union and the DAISY Consortium have been actively lobbying for something like this. The idea is that ultimately WIPO would agree on how this could be done, ie it might be done by means of a new copyright treaty or by amending an existing treaty.
In May this year, Brazil, Ecuador and Paraguay proposed a treaty along these lines. Word in the blogosphere was that at first at least countries such as USA, Canada, Australia, the EU and even New Zealand acted to block it or prevent discussion. It was said that this was as a result of intense lobbying by publishers, particularly in the USA.
I am not in a position to know how New Zealand conducted itself at the recent talks. But the outcome in the end was that the proposed treaty is still on the table. It will be evaluated further by the various countries and discussed again at the next session of the WIPO Standing Committee on Copyright and Related Rights.
I don’t think we can expect any solution very quickly on that front. Even if agreement could be reached, it would be of little value unless each country we deal with amends its domestic legislation to implement the treaty. When you consider the time it might take for countries to fine-tune and ultimately agree on such a proposal, and the time it will then take for the various countries we deal with to amend their domestic laws, I think it could be more like ten years before international copyright exemptions really make a difference. Of course another option is for New Zealand to try to establish bilateral arrangements with the countries we deal with the most, and the Association of Blind Citizens is actively promoting that as an alternative approach.
The Association recently met with representatives of our Government’s Ministry of Economic Development and discussed the approach New Zealand will take to discussions on copyright exemptions in future. We acknowledged the concerns of publishers, but we got them also to acknowledge that there are human rights issues at stake here. Yes, we claim the right to read the same books, at the same time, and at the same price as everyone else, and we argue that in today’s modern world, publishers who do not make a reasonable effort to produce their material in an accessible (even if copy protected) format are discriminating against us on the grounds of our disability and breaching the laws in many countries. That will be the subject of my next and hopefully the final blog on this most complicated, yet fascinating, topic.
Tags: access to information, accessibility, accessible format, Association of Blind Citizens, association of blind citizens of new zealand, audio, blind, braille, copyright, copyright exemption, low vision, new zealand, talking book, vision impaired
September 2nd, 2009 at 8:06 am
the thing that still surprises me is that normal libraries can provide books that are very easy to copy and re-distribute. All you need is a photocopier. Yet copyright holders don’t seem to be at all concerned about this.