An illustrative purpose of access for people with disability

16.28 The ALRC has been asked not to duplicate work being undertaken on increased access to copyright works for people with print disability. However, having determined that Australia would be best served by a fair use exception accompanied by a list of illustrative purposes, it is difficult to ignore the question as to whether facilitating access for people with disability should be an illustrative purpose. Some stakeholders, including schools, libraries, and organisations representing people with disability agreed that there should be such an illustrative purpose.^[41]

It is our view that a fair usage provision which recognises the need for individuals with a print disability to format shift from an inaccessible to accessible copy would dramatically enhance access for a significant proportion of the population and also advantage copyright owners through increased sales of their works.^[42]

16.29 Representatives of content creators considered that the statutory licence was adequate.^[43] For example, Australian Copyright Council noted that ‘the print disability statutory licence in Part VB provides greater certainty and access than either fair use or a voluntary licence’.^[44]

16.30 The ALRC agrees that the statutory licence has the potential to provide access and certainty, although there is some evidence that it is not meeting this potential. The ALRC has not conducted a detailed consideration of the statutory licence, because of its Terms of Reference. However, some tentative conclusions have been reached. First, the statutory licence should be retained and streamlined. Secondly, the obligation to undertake an investigation into commercial availability before making each accessible copy should be reconsidered. In particular, the statutory licence should be reformed so that an Australian online repository for people with print disability can be established. Finally, the statutory licence should permit reproduction in an electronic version as long as there is no commercially available electronic version with the particular access features required.

16.31 There are many ways that copyright material could be used to improve access for people with disability that are not covered by the statutory licence. The fair use exception would be valuable for people with disability doing their own format shifting, and for individuals and institutions not covered by the statutory licence who are assisting people with disability. People with disability are entitled to access copyright material at the same time and the same price as everyone else.^[45] When commercial providers are not able to provide this access, individuals and institutions should be able to use material, as necessary, to make it accessible. The fair use exception, in combination with the statutory licence, would ensure that such uses could occur.

16.32 Many uses that facilitate access for people with disability will be considered to be fair use even if there is no specific illustrative purpose, for the reasons identified by the Court in HathiTrust—such uses are transformative and do not affect the market for the original work. On the other hand, including this specific illustrative purpose would give a strong signal to the courts and the public, particularly people with disability, that such uses may be fair. It would increase certainty and confidence for users, and encourage people to undertake these socially desirable and valuable uses.

16.33 It is hoped that the market will become more responsive to consumers with disability. The best result for these consumers is ‘built-in accessibility’, where commercial providers make material available to people with disability at the same time and the same price as for others.^[46] Fair use would not usually permit a use that competed with a commercially available product. The fair use approach, with its emphasis on avoiding market harm, would ensure that commercial publishers retain an incentive to produce accessible material.^[47]

16.34 Fair use, with an illustrative purpose of facilitating accessibility for people with disability would also be an effective way of ensuring compliance with the Marrakesh Treaty, should Australia become a signatory.