Forum on Library Services for People with Disabilities

Copyright

Paper by the Copyright Agency Limited. Presented at the Forum on Library Services for People with Disabilities, March 2002

Introduction

This paper will discuss some of the important copyright issues surrounding access to copyright material for those with a print or intellectual disability. Its focus is issues surrounding access to “print” materials.

The Australian Copyright Act is one of the very few in the world which makes special provision for the use of copyright material by those with a print or intellectual disability. CAL regards this as an important facet of Australian copyright legislation and one that truly demonstrates a healthy balance between user’s needs and creator’s rights.

1. The Copyright Act

Copyright gives the creators and publishers of material such as books, articles, music, plays and other original works the right to control and obtain payment for the use of their works.

In Australia, copyright law is set out in the Copyright Act 1968 (the Act). One of the main concerns of those who framed both the Act and its subsequent amendments was and remains the desire to balance the rights of copyright owners with the community’s need to freely access and use copyright works. In order to achieve this balance, a number of exceptions and limitations to the rights of copyright owners are included in the Act.

Basically, these provisions allow users (under certain circumstances) to reproduce and communicate material without the permission of the copyright owner.

For the purpose of this paper, the relevant exceptions are the statutory licences, the fair dealing provisions and the library copying provisions.

2. Fair Dealing Provisions

Fair dealing exceptions allow the reproduction or communication of copyright material, for purposes such as research and study, without the need to seek the copyright owners permission.

Use of copyright material may be considered “fair” after a consideration of the following factors:

  • The purpose and character of the dealing;
  • The nature of the work;
  • The possibility of obtaining the work in a reasonable time at an ordinary commercial price;
  • The effect of the “use” on the potential market or value of the work; and
  • The amount and substantiality of the part copied.

An assessment of these factors, may mean that if a work is not available in the format required by the user, the whole work may be copied.

However, as each use is assessed on its merits, there is no hard and fast rule as to when a dealing is “fair”. Also at present the case law suggests that the fair dealing copy must be made by the end user.

In addition to the general fair dealing provision, there is a specific provision that provides that copying 10% or one chapter of a published literary, dramatic or musical work, of 10 pages or more, and one article from a periodical, is deemed to be fair. For digital material, users may reproduce one chapter or 10% of the work’s words. Again, however, the question of whether a user can appoint an agent to undertake the copying, and the quantitative limits, limits the usefulness of this section for our purposes.

Consequently, the level of access offered by fair dealing does not provide the flexibility needed by those with a print or intellectual disability to access copyright works.

3. Library Exceptions

Libraries are allowed to reproduce and communicate a reasonable portion of a copyright work for a library client’s research and study, or for supply to another library.

Prior to the Digital Agenda Act in March 2001, the library provisions were limited to “copying”. That Act extended the library provisions to include reproduction and communication. Consequently, the range of uses that can be made under the library provisions are wider. For example, a sound recording of a journal article could now be made under the provisions.

The library provision are limited in their application for those with a print or intellectual disability, as they were not specifically designed with the needs of the disabled in mind, and include strict limits that do not suit the needs of the disabled user.

In recent years, public and government libraries have queried whether they can use the statutory provisions for those with a print or intellectual disability to assist their disabled clients. In short, the answer is no. Only libraries within educational institutions, and institutions assisting the disabled can rely upon the statutory provisions for the disabled.

4. Statutory Licences

The statutory licence provides that educational organisations and organisations assisting the disabled can make copies of copyright works for purposes and limits defined under the licence. CAL has been appointed by the Federal Attorney-General to administer the statutory licence schemes for these institutions.

The licence was also extended by the Digital Agenda Act, and now electronic copies and communications can be made under the licence.

Organisations may copy up to a whole work in an alternate format providing it is not available for sale in that format within a reasonable period of time, and at an ordinary commercial price. These formats may include sound recordings, braille versions, large-print versions photographic versions and electronic versions of copyright works.

Although there is provision for copyright fees to be paid for these copies, since 1990, CAL has chosen not to charge a fee.

There are a number of conditions that institutions assisting the disabled must meet under Part VB Division 3 (print disabilities) and 4 (intellectual disabilities) of the Act.

Who Can Copy?

Educational institutions and institutions whose primary function is to provide written material to people with a print or intellectual disability and which have been declared by the Attorney-General as such an organisation for this section of the Act.

Who Can Copies Be Made For?

Under the statutory licence for users with a print disability, copies can be made for:-

  • a. a person without sight;
  • b. a person whose sight is severely impaired;
  • c. a person unable to hold or manipulate books or to focus or move his or her eyes; or
  • d. a person with a perceptual disability.

The Remuneration Notice

CAL must be notified that an institution intends to rely on the statutory licence. For analogue reproductions the relevant notice is either a records notice or a sampling notice. For electronic reproductions and communications, the institution must issue an electronic use notice. CAL has proforma notices available. Institutions assisting the disabled still need to complete this notice even though no fee is payable.

Monitoring the Use

For the making of analogue copies, most institutions assisting the disabled have elected to keep records. Copies of these records must be submitted to CAL within 21 days of the end of each calendar quarter. Required information includes:

  • name of the institution;
  • a reference to the section of the Act it was made under;
  • full name of the author, publication and publisher;
  • the ISSN or ISBN number;
  • year of publication or volume and number if a periodical;
  • the date on which the reproduction or communication was made and the number of pages copied;
  • number of reproductions or communications made of each page copied; and
  • the type of copy made; ie. sound recording, braille etc.

    Records must be kept by the institution for two years.

    For electronic reproductions, an “electronic use” system is yet to be agreed between CAL and institutions assisting the disabled. In the meantime, CAL suggests institutions keep records of their electronic reproductions and communications as set out above.

Marking Requirements

Under the Act, institutions copying for the disabled must mark each copy with the following information:

  • the name of the institution;
  • that the copy was made in accordance with Part VB Division 3 or 4 of the Act; and
  • the date on which the copy was made.

    Electronic copies must include a notice with this information. In addition, for electronic communications, the institution must take all reasonable steps to ensure that the communication can only be accessed by persons entitled to obtain access.

Master Copies

Institutions copying under the statutory licence can (under certain conditions) make a master copy from which other copies can be made. CAL must be notified within three months of this copy being made.

5. Issues Arising from the Statutory Licence

A number of important issues arise from the operation of the statutory licence.

It must be remembered that copies made under the statutory licence can only be used in certain ways.

Unauthorised use includes:

  • selling copies for financial gain;
  • use for purposes other than for assistance to a person with a print or intellectual disability; and
  • giving copies to an institution that does not have a statutory licence.

Furthermore, it is a breach of the statutory licence if copies are made and:

  • a remuneration notice is not in force;
  • a record of the copying has not been made (for institutions keeping full records); or
  • the copies are not marked as required.

6. Conclusion

Despite efforts to improve access to copyright material by print and intellectually disabled users, the provisions in the Copyright Act do not adequately meet the needs of those users. Wherever possible, CAL is keen to work with the bodies representing these users, to develop the mechanisms to facilitate this access. This could be either through developing a joint position on law reform issues, or by working together on industry guidelines that provide a greater certainty for those users with a print disability.

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