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September 11, 2009

The Honourable Tony Clement
Minister of Industry
and the Honourable James Moore
Minister of Canadian Heritage and
Official Languages

Dear Sirs:

Re: Copyright Reform Consultation

The National Broadcast Reading Service Inc. ("NBRS") is pleased to submit these comments in response to the Government of Canada's national consultations on copyright modernization.

Introduction to NBRS

NBRS is a not-for-profit registered charitable organization with a mandate to enhance media access for millions of Canadians who are blind, vision-restricted and/or print-restricted, so that they may enjoy the same level and quality of information and entertainment as the general population. As described below, NBRS' mandate is accomplished through NBRS' operations, which are comprised of VoicePrint, AudioVision Canada ("AVC"), and The Accessible Channel ("TAC").

VoicePrint

VoicePrint is the nation's only 24-hour TV audio reading service. VoicePrint's mandate is to deliver a steady and timely flow of information that is essential to the decision-making needs of its audience. VoicePrint broadcasts readings of full-text articles, 24 hours-a-day, seven days-a-week from more than 600 of Canada's top newspapers and magazines into 10 million homes. The service is volunteer-based with more than 800 individuals donating their time and talent to record original programming at various centres across the country.

NBRS was originally granted a licence by the Canadian Radio-television and Telecommunications Commission (the "CRTC") in August 1990 to operate a national English-language audio service, and VoicePrint went on the air in December of 1990. In recognition of the importance of accessibility to people who are blind, vision-restricted and/or print-restricted and the value of VoicePrint's unique service, in 2001, the CRTC licensed VoicePrint as a "must-carry" service. This means that virtually all digital cable and satellite providers in Anglophone markets must carry the service as part of their basic service. VoicePrint is primarily accessed on the secondary audio program (SAP) of CBC Newsworld, while some providers carry the service on a separate channel through digital cable. VoicePrint is also available on the Internet, through its website (http://ww.voiceprintcanada.com/).

AudioVision Canada ("AVC")

AVC is Canada's first video-description company and a pre-eminent supplier of video description products and services. AVC was established as a division of NBRS in 1995. Its mission is to make television broadcasts and movies fully accessible to blind and vision-restricted persons through the process known as "video description" or "described video".

Described video offers a narrative description of a movie or television program's key visual elements, permitting a blind or vision-restricted member of the audience to form a mental picture of what sighted viewers can see on-screen. The narration is scripted, recorded and then matched to the existing soundtrack so that it is congruent with what is on the screen and does not distract from the original dialogue or sound effects. This approach is unique because it is inclusive, allowing the production to be enjoyed by everyone: people who are blind or vision-restricted, plus their friends, families and companions.

AVC has earned a reputation for superior work and in recognition of this, has been selected as the description provider for converting the extensive National Film Board library, two years in a row. The quality of its description has allowed AVC to export its described programming to other countries and its library is currently distributed in the U.S., the U.K. and through the Internet, on Audible.com.

The Accessible Channel ("TAC")

TAC is the only TV channel of its kind in the world. It provides blind, vision-restricted, deaf and hard of hearing Canadians with access to described video and closed captioned versions of the same popular programming that is available to the average Canadian in a manner that is inclusive of the whole family.

TAC was licensed by the CRTC in 2007 as an English-language digital cable specialty channel, providing general entertainment and information programming with all programming broadcast in open format with described video and closed captioning. As with VoicePrint, TAC has been mandated by the CRTC as a service of national importance and is a "must-carry" service on the basic tier of virtually all digital cable and satellite television providers.

The Importance of the Copyright Reform Consultation to Blind, Vision-Restricted and Print-Restricted Canadians

The number of people that benefit from the TV reading service provided by VoicePrint and the described video services provided by AVC and TAC is growing. According to a 2004 study on the impact of aged-related macular degeneration released by the Canadian Association of Ophthalmologists, age-related macular degeneration has accounted for vision loss and blindness in 2.1 million persons. Further, it is important to recognize that the benefits of providing access extends to those persons who are living with a person or persons who are blind or vision-restricted. Conservatively, the estimate of the total population benefiting from televised reading and described video — including those who are blind or vision-restricted (persons 2+) and their extended household — is estimated to be in the range of 3.2 to 3.8 million persons. 1

The CRTC has long identified the need to improve access to television services for those persons with perceptual disabilities and has ,recognized the important social objectives to be served by such increased access. As the CRTC stated:

The importance of achieving increased accessibility also springs from the fact that television is clearly a key tool for social integration. Television is an essential source of information for Canadians, enabling them to involve themselves, knowledgably and effectively, as members of Canadian society. As a vehicle for entertainment, television also allows Canadians to participate in a shared culture and shared social values. 2

CRTC

In order to fulfill these important social objectives, it is critical that Canada's copyright laws going forward continue to provide, and indeed enhance, access to copyrighted works for persons with perceptual disabilities.

Recommendations for Copyright Reform

(a) Current Copyright Act

Section 32(1) of the current Copyright Act provides an exemption from liability for copyright infringement with respect to persons with perceptual disabilities, which allows the production of copies of works or sound recordings in perceptible formats without the permission of the copyright owner:

  • 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
    1. make a copy or sound recording of a literary, musical, artistic or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability;
    2. translate, adapt or reproduce in sign language a literary or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability; or
    3. perform in public a literary or dramatic work, other than a cinematographic work, in sign language, either live or in a format specially designed for persons with a perceptual disability.
  • (2) Subsection (1) does not authorize the making of a large print book.
  • (3) Subsection (1) does not apply where the work or sound recording is commercially available in a format specially designed to meet the needs of any person referred to in that subsection, within the meaning of paragraph (a) of the definition "commercially available". [emphasis added]

While section 32(1) has been of crucial assistance to persons with perceptual disabilities and non-profit organizations acting for their benefit, NBRS would like to take this opportunity to propose the following recommendations on how this section can be improved.

  1. The current wording of section 32(1) makes it unclear whether a non-profit organization acting on behalf of persons with a perceptual disability needs to act at the request of a person with a perceptual disability, or whether the non-profit organization can do so without a specific request. It would be unduly restrictive if services such as VoicePrint, AVC and TAC could only provide their services in response to specific requests from persons with perceptual disabilities. This would have the effect of drastically reducing the amount of copyrighted material accessible to blind, vision-restricted and/or print-restricted Canadians, which we do not believe is the intention of the Government.
    • Recommendation 1: In order to reflect Canadians' value and interest in fostering improved accessibility for persons with perceptual disabilities, section 32(1) should be revised to make it clear that a non-profit organization acting on behalf of persons with a perceptual disability does not need to act on the request of a person with a perceptual disability in order to benefit from the exemption in section 32(1).
  2. Section 32(1) does not include new advancements in activities and technologies for accessibility by those with perceptual disabilities, such as closed captioning, described video, and software that can read books for blind, vision– and/or print– restricted individuals, to name a few.
    • Recommendation 2: In order to modernize the Copyright Act and to permit it to withstand the test of time, section 32(1) should be drafted in a manner that is technologically neutral and can accommodate new advancements in technology for the creation and dissemination of accessible material for persons with perceptual disabilities.
  3. The exception in section 32(1) does not extend to cinematographic works (i.e., feature films). There is no sound policy basis for the exclusion of feature films from the repertoire of material that may be accessed by those with perceptual disabilities. Parliament has recognized the importance of persons with perceptual disabilities having access to literary and televised works; feature films are no different in terms of the insights to social and cultural issues they provide. In some cases, it may not be possible, or the costs may be prohibitive for a non-profit organization, to obtain a rights holders' consent to produce a described video version of its feature film. This should not be a basis for exclusion to prevent blind or vision-restricted Canadians from enjoying feature films.
    • Recommendation 3: Cinematographic works should not be excluded from section 32(1).
  4. Section 32(3) provides that the exception in section 32(1) is not available where the work or sound recording is commercially available in a format specially designed to meet the needs of any person referred to in that subsection. For this purpose, "commercially available" means "available on the Canadian market within a reasonable time and for a reasonable price and may be located with reasonable effort".
    • This provision is open to varying interpretations. For example, does the commercial availability of a television program in closed captioned format for persons who are deaf or hard of hearing exclude a described video version of the same program for persons who are blind or vision-restricted, since the program is already commercially available in a format specially designed to meet the needs of a person with a perceptual disability, albeit a diffèrent one? Does the existence of software that can read books for blind, vision– and/or print-restricted individuals constitute a suitable commercially available alternative format to the TV reading service provided by VoicePrint or the described video services provided by AVC and TAC? What parameters are used to determine whether a product is available at a "reasonable price" and "may be located with reasonable effort"? For a blind or vision-restricted person with possibly little or no income, having to travel to a book store or navigate the Internet to purchase reading software and then install it on his/her computer, rather than simply turn on his/her TV, reading software may not be "commercially available" to him/her and may not present a suitable alternative format.
      • Recommendation 4: In order to foster innovation and creativity in the creation of new products and services for persons with perceptual disabilities, the limitation in section 32(3) should apply only where the work or sound recording is commercially available in a format that is identical to the format for which the exemption in section 32(1) is being sought and is specially designed to meet the needs of persons with the same perceptual disability.

(b) Proposed Amendments in Bil C-61

Section 41.16 of Bill C-61 proposed to include an anti-circumvention exception for persons with perceptual disabilities. The proposed amendments would have allowed persons with perceptual disabilities and those acting on their behalf to remove digital locks (or digital rights management ("DRM")) for the purpose of producing materials in alternate formats, but only to the point where it does not "unduly impair the technological measure", This raises significant issues for persons with perceptual disabilities:

  • by their very nature, digital locks discriminate against access by persons with perceptual disabilities;
  • most persons with perceptual disabilities lack the technical expertise and the means to employ a person with technical expertise to circumvent digital locks; and
  • it is unclear what "unduly impair the technological measure" means.
    • Recommendation 5: Companies that utilize DRM should be required to circumvent their digital locks, where requested to do so for access by persons with perceptual disabilities or non-profit organizations acting for the benefit of persons with perceptual disabilities.

We trust that the above recommendations will be helpful in your deliberations. NBRS appreciates the opportunity to participate in this important process.

Yours very truly,

David Errington
President & CEO


1Assumes at least one half of the blind and vision-restricted population live in a 2-person or larger household. (Return to text.)

2Public Notice CRTC 2005–18: Commission requirements for the pass-through of video description — Call for comments on the obligations of smaller broadcasting distribution undertakings, 25 February 2005, at para. 1. (Return to text.)