November 20 2012

Submission to ALRC Inquiry into Copyright and the Digital Economy

Email:  			copyright@alrc.gov.au
Submission to:		Executive Director, 
Australian Law Reform Commission 
GPO Box 3708
Sydney   NSW   2001

Response Submitted by:	Bruce Maguire, Policy and Public Affairs Advisor
About Vision Australia

1)	Vision Australia is the largest provider of services to people who are blind, have low vision, are deafblind or have a print disability in Australia. It has been formed over the past eight years through the merger of several of Australia’s oldest, most respected and experienced blindness and low vision agencies. These include Royal Blind Society (NSW), the Royal Victorian Institute for the Blind, Vision Australia Foundation, Royal Blind Foundation of Queensland, and Seeing Eye Dogs Australia.

2)	Our vision is that people who are blind or have low vision will increasingly be able to choose to participate fully in every facet of community life.  To help realise this goal, we provide high-quality services to the community of people who are blind, have low vision, are deafblind or have a print disability, and their families. The service delivery areas include:

•	early childhood
•	orientation and mobility
•	employment
•	accessible information (including library services)
•	recreation
•		independent living
•	advocacy, and working collaboratively with Government, business and the community to eliminate the barriers our clients face in making life choices and fully exercising rights as Australian citizens.

3)	The knowledge and experience we have gained through interaction with clients and their families, and also by the involvement of people who are blind or have low vision at all levels of the Organisation, means that Vision Australia is well placed to provide advice to governments, business and the community on the challenges faced by people who are blind or have low vision fully participating in community life. 

4)	We have a vibrant client consultative framework, with people who are blind or have low vision representing the voice and needs of clients of the Organisation to the Board and Management through Local Client Groups, Regional Client Committees and a peak internal Client Representative Council. The involvement of people who are blind or have low vision and who are users of Vision Australia’s services representing the views of clients is enshrined in Vision Australia’s Constitution. Vision Australia is also a significant employer of people who are blind or have low vision, with 19% of total staff having a vision impairment.

5)	Given that Vision Australia is a national disability services organisation, that we provide services at a local level through 67 service centres and outreach clinics, and given that each year we work with over 33,500 people who are blind, have low vision, who are deafblind, or have a print disability each year, we understand the impact of blindness on individuals and their families.

6)	In particular, we are well placed to understand and represent the needs, aspirations and expectations of our clients as they relate to their ability to access information and library services.

7)	In the 2011-12 financial year, Vision Australia provided library services to more than 20,000 clients, and circulated 693,000 book titles. Our library includes braille, large print, audio and e-text materials.

Response to the ALRC Issues Paper

Introduction

8)	The Terms of Reference for the ALRC Inquiry into Copyright and the Digital Economy include a requirement that the Inquiry not duplicate other work that is being done in, inter alia, the area of increased access for people with a print disability to copyrighted works. Since we are not aware of any other work that is currently being undertaken in this area, we believe that it is appropriate for the ALRC to consider several relevant issues, which we discuss below.

9)	It is important to consider the interface between copyright law and print disability in the context of the UN Convention on the Rights of Persons with Disabilities (“the Convention”). The Convention is the fullest expression of the rights that people with disabilities have in many areas of civil, economic, political and community life. One of the rights asserted in the Convention is the right of access to information. In particular, Article 30 (3) requires that:

“3. States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials.”

10)	Some advocates in the print disability sector have argued for many years that there should be a “right to read”, that would allow people with a print disability and organisations assisting them to do whatever is necessary to provide equal access to copyrighted works provided that a significant detriment to the author was not thereby caused. While Article 30(3) of the Convention may not be a “right to read” as such, it is a very clear statement about the irreducible right to have equal access to information that should not be thwarted by notions and laws about intellectual property.

11)	Australia has ratified the Convention, and is thus bound by obligations under its Articles, including Article 30. Inquiries such as the present one into Copyright and the Digital Economy must therefore take account of Australia’s obligations under the Convention in the consideration of issues and the formulation of recommendations for changes to copyright law and practices in Australia.

12)	Amendments to the Copyright Act 1968 (Cwlth) have made it easier for organisations such as Vision Australia who produce materials in accessible formats for people with a print disability to undertake that production. For example, statutory licence provisions have replaced the need for a voluntary licence to produce a copyrighted work to be negotiated with publishers on a title by title and a format by format basis.

13)	The digital economy has developed over the past two decades. In particular, the trend towards convergence of broadcasting, computing, publishing and telecommunications has made it possible for new formats to be introduced and new ways of delivering copyrighted content to evolve. These and related developments have sometimes, by serendipitous accident as it were, brought benefits for people who are blind or have another print disability. The replacement of the compact cassette by the CD, for example, has made it easier for consumers to handle and store audio books. The development of the MP3 and DAISY formats has made it possible to produce audio books that can be transported much like conventional print books while, at the same time, including structural information that makes it easy for a reader to navigate quickly from chapter to chapter and page to page.

14)	The development of the digital economy has also brought significant challenges for people with print disability. While mainstream publishers have become more involved in the production of commercial audio books and digital formats, these products are rarely optimised for use by people with a print disability and are, in general, not regarded as a substitute for a print version. A commercial audio book, for example, does not include verbalisation of elements such as page numbers or spelling of proper names, nor does it provide a mechanism for navigating quickly from paragraph to paragraph, page to page, and chapter to chapter. These features are inherent in a paper-based print book, but commercial audio books are not seen as replacing paper but rather as a complement or adjunct to print for use in situations where print might not be convenient (such as when driving) or to convey the content in a different way. For a person with a print disability, however, an audio book may be their only means of accessing the content, and they will therefore want to have access to elements such as print-page numbers, spelling, and structural navigation. In general, only organisations assisting people with a print disability provide this level of access in their products, yet it is a level of access that is taken for granted by any reader of a paper-based print book.

15)	Whilst few would argue that people with a print disability do not have the right to have equal access to print (including access to structural information and elements such as page numbers), current copyright law makes it unreasonably difficult for organisations to provide it, notwithstanding the improvements that more recent amendments to the Copyright Act have brought about.

16)	A similar challenge has arisen for Vision Australia and other organisations providing a Radio for the Print Handicapped (RPH) service to people who have a print disability. While copyright law allows material to be read on terrestrial RPH stations, it does not confer a similar copyright exemption when the same material is streamed on the internet. Radio (including RPH services) is increasingly being made available on the internet, and people with a print disability are being denied access to a full RPH service delivered online because copyright law has not kept pace with technological developments.

17)	The following paragraphs provide more specific details about several issues that we believe the Inquiry should consider and address through appropriate recommendations.

Commercial availability a barrier to equal access

18)	Section 135ZP of the Copyright Act allows an organisation assisting people with a print disability to produce an accessible-format version (that is, braille, audio, large print or electronic)) of a copyrighted work without the need to seek prior permission from the publisher (subsections (1) and (2)), provided that there is no existing published accessible-format version that can be obtained in a reasonable time or at an ordinary commercial price (Subsections (3)-(6)). This proviso of commercial availability has become increasingly problematic as digital technologies have developed.

19)	As has been mentioned previously when a mainstream publisher produces a commercial audio book, they do so on the basis that the audio book is not a substitute for, but rather a complement to, the print version. Commercial audio books therefore do not include information such as print-page numbers, spelling of proper names, and detailed structural information. In many cases they do not even contain audio announcements of the CD and track numbers because this information is available in a visual form. So while a person with a print disability is able to listen to a commercial audio book, they are not able to access key elements that a print reader would take for granted and, moreover, they have no way of accessing the book in a paper-based print form. For a person with a print disability, the audio version is in most cases the only version that is accessible to them. 

20)	Organisations such as Vision Australia who produce materials for use by people with a print disability use structure-based formats such as DAISY (Digital Accessible Information System), which provide a mechanism for including a wide range of information that is absent from commercial audio books but which is taken for granted by readers of print.

21)	It is our understanding that on a number of occasions in the past, the Copyright Agency Limited (CAL) have expressed the view that  a commercial audio book without structural and other extra-textual information is not the same version as one produced by an organisation assisting people with a print disability and which does include this information. In other words, an organisation assisting people with a print disability may proceed with producing an audio book that includes structural information unless a commercially-available version also includes this information.

22)	However, Section 135ZP of the Copyright Act does not clarify this issue. In practice, organisations such as Vision Australia that assist people with a print disability are reluctant to undertake productions lest they inadvertently infringe the requirements of Section 135ZP and fall foul of publishers. The result is that people with a print disability are being denied equal access to many books because of a failure in the legislation to take account of technological developments and the different ways in which audio books can be produced.

23)	In the past few years it has become technically possible to produce audio books using a synthetic voice rather than human narration. Some niche publishers are offering such books for sale at a commercial price.

24)	There will undoubtedly be improvements in synthetic speech technology in the future, but at present the narration quality of synthetic speech is far inferior to the quality of human narration. Many aspects of punctuation and intonation are not present in a synthetic speech narration, and there are frequent mispronunciations, especially of proper names. While the end result might be suitable for ephemeral material such as discussion papers, meeting agendas and the like, most people with a print disability would not choose to listen to full-length books, particularly literary fiction, if a version with human narration were not available. Vision Australia does not believe that the availability of a synthetic-speech narration of a book should prohibit production of a version with human narration.

Recommendation 1

That the Inquiry consider ways of amending Section 135ZP of the Copyright Act to take account of the differences between commercial audio books and versions of audio books designed to provide people with a print disability with equal access to content and structure.

Availability of works that have multiple copyrights

25)	Developments in digital technology over the past decade or so have made it possible for Vision Australia to provide accessible electronic versions of daily newspapers and other print periodicals to people with a print disability. We have collaborated with newspaper and magazine publishers to obtain data feeds which we can then structure using the DAISY format and provide to people with a print disability via automatic or manual download.

26)	Changes in the way content for newspapers and periodicals is sourced and assembled mean that most such publications now include a portion of content that is sourced from freelance journalists or authors who are not employed by the publisher. The copyright in such content generally resides with the author and not with the publisher of the newspaper or magazine.

27)	The implication of this for Vision Australia is that publishers are not able to provide this content to us as part of their data feeds, and so we are not able to provide it to people with a print disability. What this means for our clients is that they are not able to access a significant portion of content in newspapers and other periodicals. This causes frustration both for us as an organisation and for our clients who feel excluded from the information that is available to the rest of the community. The opinions and views expressed in syndicated columns are often discussed around the dinner table, in the workplace, and in other media, and our clients are being denied equal access to such content because publishers are not permitted under copyright law to provide it to us as part of their data feeds.

Recommendation 2

That the Inquiry develop recommendations for amendments to the Copyright Act to allow publishers of newspapers and other periodicals to make syndicated and freelance content available as part of their data feeds to organisations assisting people with a print disability.

Radio for the Print Handicapped limited by Copyright Legislation

28)	Radio for the Print Handicapped (RPH) is a nationally-provided radio service that provides readings of print media such as newspapers and magazines. It had its conceptual beginnings in the development of community and public radio in Australia in the mid-1970s, and it began operation in 1982 with stations in Hobart and Melbourne, supported by funding from the Commonwealth government as part of its response to the International Year of Disabled Persons (IYDP)). Today, there are 12 RPH licences incorporating 19 RPH services across Australia, broadcasting on the AM and FM bands. For many people who are blind, have low vision or another print disability, the RPH service is a primary way of gaining access to newspapers, magazines, and other mainstream media. It is estimated that the national weekly audience for the RPH service is several hundred thousand.

29)	Under Section 47A of the Copyright Act 1968, the RPH service is granted a Statutory Licence that allows it to broadcast readings of print media without the need to seek permission from the copyright holder and subject to certain record-keeping requirements. With the rapid development of the internet, the RPH service is keen to utilise the potential offered by this and other digital platforms to make its services more widely and readily available. However, the current copyright arrangements established by S47A do not extend to providing readings over the internet, so the RPH service is currently not able to operate as a reading service in this medium without engaging in time-consuming negotiations with individual publishers to obtain copyright permission. The result is that people who are blind, have low vision, or another print disability are unable to benefit from advances in content distribution such as internet streaming, at a time when internet radio is becoming commonplace for the rest of the community.

Recommendation 3

That the Inquiry recommend that the terms and conditions of the Statutory Licence granted by Section 47A of the Copyright Act 1968 to the RPH service be extended to apply irrespective of the technology platform used to deliver content.