Problems with existing arrangements

The statutory licence for institutions

16.12 Stakeholders pointed out that the pt VB statutory licence does not extend to artistic works (such as drawings, diagrams, maps and plans) or to musical works.^[12] It extends to educational institutions and institutions assisting persons with print disability, but not other institutions such as libraries outside educational institutions.

16.13 Some difficulties with the statutory licence have been identified by the Australian Copyright Council.

• Publishers are not legally obliged to supply digital files for people with print disability, and can provide them on restrictive terms and conditions.

• Organisations must check for commercial availability before making each copy,^[13] which is ‘pointlessly onerous’ when the work is frequently requested and is never likely to be available in the relevant format. This requirement means that it is ‘effectively impossible to make accessible material available online’.

• The Act does not allow reproduction into a format that is commercially available, even where the commercially available version has TPMs that inhibit the use of screen readers, or does not have the navigation information that is useful for a person with a print disability.^[14]

16.14 There are penalties for the removal of TPMs, and for manufacturing, importing or distributing a circumvention device.^[15] Institutions assisting persons with print disability are allowed to remove a TPM,^[16] but it is not clear how the institution would obtain a circumvention device.^[17]

16.15 Some publishers are making audio books available using synthetic voice rather than human narration. Many people find synthetic speech unpleasant to listen to and prefer to listen to a version with human narration. However, if there is a synthetic voice version commercially available, it may not be possible to rely on the statutory licence to make a human narration version.^[18]

16.16 In 2005, the Queensland Narrating Service, an institution assisting people with a print disability, reported that its efforts to provide narrations of books in a timely manner were hindered by long waits for publishers’ permissions, refusal of permission for digital copies and the administration costs associated with the statutory licence.^[19]

16.17 Also in 2005, a joint submission from three Australian organisations representing people with print disability reported that efforts to digitise 500 analogue items that were ‘the core collection of library materials for the print disabled’ were jeopardised by ‘outmoded and restrictive legislation’.^[20]

16.18 In 2008, Nicholas Suzor pointed out that while the United States had an online repository of books for the blind, and Canada was developing one, Australia had no such repository. He noted that Australian copyright law appears to provide for the development of a repository, but none had been developed for reasons that may include ‘the complexity of the legislative scheme’.^[21] He also reported that the statutory licence ‘is rarely used to provide electronic text versions (which) suggests some difficulties in interpretation or implementation of the licence in the digital environment’.^[22]

Exceptions for individuals and libraries

16.19 The exceptions in the Copyright Act that are available to individuals are highly qualified—fair dealing is only available for research and study, and not, for example, for reading for leisure. The format shifting and s 200AB ‘special case’ exceptions have significant limitations, discussed in Ch 10 and 12.^[23] The ALRC recommends that all of these exceptions should be repealed and replaced with fair use.^[24]

16.20 The usefulness of these exceptions for people with disability is diminished by the existence of TPMs on many copyright works. Individuals are not permitted to remove TPMs on copyright material they have purchased, even if that TPM is preventing the operation of a screen reader.^[25]

16.21 The Copyright Act allows libraries to scan books for the benefit of persons with print disability, but ss 49(7A) and 50(7C) require those scans to be destroyed after a single use, resulting in significant expense for the library and delay for the student.^[26]

Market-based solutions

16.22 Some of these problems may be resolved without changes to the law. The Australian Publishers Association (APA) reported that audio, large print, Braille and DAISY^[27] versions of books are becoming more available through commercial channels.^[28] The APA also pointed to changes in technology that allow customers to choose their own font size when accessing an ebook, and to a World Intellectual Property Organization project that facilitates the cross border exchange of books in accessible formats between national libraries and charitable institutions serving people with print disabilities.^[29]

16.23 Similarly, the Australian Copyright Council has attempted to address these problems by encouraging publishers to offer the Individuals Print Disability Licence and by drafting a sample agreement for print disability organisations and publishers.^[30] In 2005, five publishers had granted the licence to individuals with print disability.