CNIB

CNIB Submission to Canada's Copyright Reform Process

Question 1
How do Canada's copyright laws affect you? How should existing laws be modernized?

"Exclusion from information is an insidious form of social exclusion" — An Unequal Playing Field: Report on the Needs of People Who Are Blind or Visually Impaired Living in Canada, CNIB, 2005

This submission is organized in 3 parts: preface, discussion of issues, and summary of recommendations.

Preface

CNIB provides public library services to Canadians living with vision loss and other disabilities that exclude them from print culture.

Our nation-wide library services have the potential to reach an estimated 3 million Canadians (10% of the population) for whom access to information in alternative format is the basis for education, employment, recreational reading and social inclusion.

The commercial availability of alternative formats is slim — only 5% of print material published in Canada. Very few Canadian works make it to the eBook or audio book market, and most that do are already runaway bestsellers in print. For example: only one of the books selected for Canada Reads 2009 on CBC Radio was available in audio through retailers or public libraries when the debate aired in March (Someone Knows My Name — the American edition of Book of Negroes). CNIB made all five books available in time for Canadians with disabilities to participate.

The CNIB Library, therefore, must produce the alternative format versions of books for its collection or acquire them from other alternative format producers. To do this, CNIB relies on s.32 of the Copyright Act, an exception for persons with perceptual disabilities.

These formats include digital text, audio and braille, structured in a way that a person using text-to-speech or other adaptive technology can read and navigate a work independently, the same way another person reads in print — by heading, index, and so on.

CNIB's capacity to produce new English and French books in alternative formats falls desperately short of providing equitable access to information. It also does not respond to the diversity of Canadian society and the growing demand for material in other languages.

In the United States, where the number of e-books and audio books is growing rapidly, formatting issues and business models based on Digital Rights Management have introduced new barriers to accessibility. Most recently, Amazon decided to turn off text-to-speech on the Kindle, making its content inaccessible to Americans with print disabilities.

The XML-based ePUB standard makes it possible for publishers to produce books in a digital file that can be output in a variety of formats to meet the needs of each reader (with or without disabilities) and broaden its market base at the same time. There is also a trend to offer DRM-free content and design new business models that make it easy for consumers to obtain and use material legally.

CNIB would like nothing better than to reach the day when Canadians with print disabilities can obtain accessible content through mainstream channels, and the need for organizations such as the CNIB Library to make copies of works in alternative formats is reduced to specialized materials with very limited market value. Until that time, CNIB will continue to make full use of the exception in s.32.

Discussion of Issues

Clarification of language in s.32 exception
S.32 (1) of the Copyright Act currently reads:

"32. (1) It is not an infringement of copyright for a person, at the request of a person with a perceptual disability, or for a non-profit organization acting for his or her benefit, to…"

There is a minor ambiguity in this wording that could be interpreted as requiring organizations such as the CNIB Library to receive a request from a person with a perceptual disability for a specific work before it makes a copy in alternative format. This strictly 'on request' approach does not support a library service model, where patrons request items that the library has pre-selected for its collection.

CNIB recommends a minor change in wording to avoid any such interpretation that would diminish the spirit of the law.

Import and export between trusted intermediaries

There is an immediate opportunity for CNIB to increase the amount and linguistic diversity of accessible library material available to Canadians by collaborating with trusted intermediaries in other countries where there are similar legislative exceptions.

The ability to import and export alternative format material would also increase the overall output of alternative formats significantly, as each work would be produced once by a single organization, instead of multiple times by organizations in different countries. For example: if it takes 10 hours to narrate an audio book and eight different agencies produce it, 80 hours are used globally to produce a single book. That book and seven others could have been made available in the same time through international collaboration.

A draft treaty was recently proposed by the World Blind Union and three member states (Brazil, Ecuador and Paraguay) to the Standing Committee on Copyright and Related Rights of the World Intellectual Property Organization (WIPO) that would legitimize the import and export of alternative format materials among trusted intermediaries.

CNIB recommends that s.32 of the Copyright Act recognize the legitimacy of import and export of alternative formats between trusted intermediaries in other countries, when the materials were lawfully made under a similar exception.

Accessible publishing models and digital locks

The CNIB Library currently acquires digital text and audio files from several publishers to facilitate the production of alternative formats that are designed to meet the needs of persons with print disabilities.

Providing source files to organizations such as the CNIB Library helps significantly, but the onus is still on the charitable sector to meet consumer needs.

Now is the time for publishers to embrace formats designed for universal access and lessen the need for alternative format production under an exception.

Ironically, previous attempts to reform copyright have introduced measures that would potentially restrict accessibility by locking down content and locking out Canadians with print disabilities that use text-to-speech and other adaptive technology.

While Bill C-61 did permit for Technical Protection Measures to be circumvented for non-infringing use, it outlawed the tools required to do so. More to the point, it is unreasonable to expect any consumer to have the technical savvy required to acquire and use circumvention tools.

CNIB recommends that business practices such as Technical Protection Measures, which restrict accessibility, not be enshrined in legislation. Rather, Canada should invest in a digital publishing industry that produces formats designed for universal access and broadens the market for its cultural products.

Summary of Recommendations

1. Amend s. 32 so that there is no room for misinterpretation where library services for persons with perceptual disabilities are concerned. A minor change in wording is required:

   32. (1) It is not an infringement of copyright for a person, at the request of a person with a perceptual disability, or for a non-profit organization acting for his or her the benefit of a person with a perceptual disability, to…"

2. Expand s.32 so that it recognizes the legitimacy of import and export of alternative formats between trusted intermediaries in other countries, when the materials were lawfully made under a similar exception. Recommended wording:

   "Copyright is not infringed by the importation into Canada by a non-profit organization acting for the benefit of persons with perceptual disabilities of any materials for such persons that that organization could lawfully make under section 32."

   "Copyright is not infringed by the export by a non-profit organization acting for the benefit of persons with perceptual disabilities of any materials produced in Canada under section 32 to a non-profit or other organization in another country that has in its legislation an exception or other legal provision permitting the making of materials in formats accessible to the perceptually disabled."

3. Do not enshrine in legislation business models that are based on a technology framework (i.e., technical protection measures) that restricts accessibility. Invest instead in a digital publishing industry that produces formats designed for universal access and lessens the need for alternative formats.

   However, if technical protection measures are legislated, then expand s.32 so that it recognizes that circumvention (and circumvention tools) is permitted when it is for the purpose of making material accessible. Recommended wording:

   "It is not an infringement of copyright for a person, at the request of a person with a perceptual disability, or for a non-profit organization acting for the benefit of a person with a perceptual disability, to circumvent a Technical Protection Measure (TPM) for the sole purpose of making the work perceptible."

August 27, 2009