Other approaches

16.24 Canada and the United Kingdom allow a wide range of bodies, as well as individuals, to use the exceptions for access for people with disability.[31] New Zealand’s approach is similar to Australia, in that it allows prescribed bodies to make modified copies of published literary or dramatic works, if the work is not commercially available.[32]

16.25 The United States has a print disability scheme under s 31 of the US Copyright Act 1976 (the Chafee Amendment). It allows authorised entities to copy published, non-dramatic literary works in formats for use by persons with disability.[33] This scheme has facilitated the establishment of Bookshare, an online library for individuals with print disability. Bookshare is available in Australia but not all the books in the collection are available to Australians.[34] Blind Citizens Australia noted that

The creation of secure online text repositories for the exclusive use of people who are blind has allowed these countries [US and Canada] to provide a highly beneficial service with little impact on copyright owners.[35]

16.26 In The Authors Guild v Hathitrust, the court held that the existence of the Chafee Amendment did not preclude reliance on fair use for access for people with disability.[36] The HathiTrust Mass Digitisation Project made digital books available to students on a secure system for students with certified disabilities. Justice Baer said that digitisation has enabled ‘the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers’.[37] He found that the use of copyright material was transformative in that it provided access for print-disabled individuals, a purpose that was not served by the original work.[38] He also noted that the provision of access for print-disabled individuals does not have a significant impact on a market.[39]

16.27 The American Library Association reports that fair use has provided the flexibility to allow libraries to ‘maintain their missions when a purpose-specific exception may not cover unforeseen or unaccounted-for changes in technology or access’.[40]