House of Commons
Session 2001- 02|
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Arrangement of Clauses (Contents)
|Copyright (Visually Impaired Persons) Bill|
These notes refer to the Copyright (Visually Impaired Persons) Bill as introduced in the House of Commons on 18th July 2001 [Bill 23]
COPYRIGHT (VISUALLY IMPAIRED PERSONS) BILL
1. These explanatory notes relate to the Copyright (Visually Impaired Persons) Bill as introduced into the House of Commons on 18 July 2001. They have been provided by Rachel Squire MP, the Member in charge of the Bill, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. These notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. This Bill addresses the problems encountered by visually impaired people who have difficulty accessing material in the form in which it is published. As information, and the ability to obtain information quickly, becomes increasingly important in the knowledge economy, the difficulties encountered by visually impaired people in accessing this information impose a serious obstacle to their involvement in the economy and society. But problems exist in many different situations, for example, learning in the classroom, study at home, enjoying books as a leisure activity, discovering the latest news, understanding instructions for a piece of equipment, discovering information on the Internet, and even learning to play a piece of music. Visually impaired people will rarely be able to participate in these activities, and many more, unless it is possible for the information for the activity to be presented to them in a format that they can access which will often be different from that in which it has been produced. However, conversion to an alternative format will involve an act restricted by copyright and so in general will not be possible without the permission of the copyright owner.
4. Permission must be sought from the publisher in the first instance but it may involve contacting a number of people who may have copyright vested in a work. Usually this is granted, but typically there are significant delays and on occasion outright refusal. It can take anything from a month to two years to get permission. This means that visually impaired people are placed at a substantial disadvantage in accessing a wide range of information needed for their education, employment and enjoyment of culture in relation to people who can read standard print.
[Bill 23-EN] 53/1
5. The purpose of this Bill is to remove some of the difficulties facing visually impaired people who need conversions of copyright material into alternative formats while safeguarding the rights of copyright owners. It does this by setting out two situations in which producing accessible copies of copyright material for visually impaired people without seeking prior permission from the right holders does not infringe copyright, i.e. two exceptions to copyright. Visually impaired people would be able to benefit from either or both exceptions depending on the circumstances. The two exceptions are added to the existing list of exceptions contained in Part 1 of the Copyright, Designs and Patents Act 1988, which is the substantive law on copyright in the UK.
6. First, the Bill provides that single accessible copies of a work may be made by or on behalf of a visually impaired person for their personal use without first seeking the permission of the copyright owners and without infringement of copyright. Various conditions apply to this exception. For example, activity under this exception is infringement free provided that the original work has been lawfully obtained by the visually impaired person and an accessible copy of the work is not already available. Second, the Bill makes provision for multiple accessible copies to be made for and distributed to visually impaired people without seeking the permission of the right holders but with safeguards for the moral rights of the author, and without interfering with the legitimate exploitation of the work. Only educational establishments or bodies conducted not for profit may act under this exception. Where there is a licensing scheme covering the work or works in question, the provision of multiple accessible copies will be subject to the terms and conditions of the scheme. The exception does not apply if there are commercially published versions of a work which are accessible to visually impaired people, although the exception acknowledges that what can be accessed will be different for different visually impaired people. Finally, in the event of serious infringements of copyright arising from the activities of bodies under this second exception, the Secretary of State would have the power to prohibit the body or bodies involved from acting under the exception.
7. Research commissioned by the Royal National Institute for the Blind (RNIB) and others in 1999 revealed that of the over 100,000 titles published in the UK in 1998, only 5 per cent were available in formats accessible to visually impaired people a year later. The majority of accessible copies of books, magazines and sheet music are produced by voluntary organisations such as RNIB, the National Library for the Blind, Scottish Braille Press and Calibre Cassette Library. With the exception of a few commercial publishers of large print and abridged audio books, most publishers find it uneconomic to make accessible copies of works available to visually impaired people. Accessible copies are therefore usually produced on a voluntary basis, underpinned by subsidy from charitable funds.
8. In 1999, after receiving representations from a number of organisations acting on behalf of visually impaired people, and in view of the freedom to take action anticipated in the EU Copyright Directive, the Government agreed in principle to introduce a copyright exception for the benefit of visually impaired people. The Disability Rights Task Force (DRTF) also became interested in this issue in 1999 after it had been made aware of the copyright constraints on converting material into alternative formats. The DRTF was set up by the Secretary of State for Education and Employment in December 1997 to advise on how best to deliver comprehensive and enforceable civil rights for disabled people. The DRTF's final report, 'From Exclusion to Inclusion', was published in December 1999. This report approved of the Government's position and acknowledged that both rights' owners and disability organisations should be consulted before the precise nature of the copyright exception was decided.
9. The Patent Office issued a consultation paper in February 2001 outlining the possible forms an exception might take and inviting views on alternatives and related issues. The central proposition was for an exception in two parts: one dealing with the making of a single accessible copy for personal use, the other with larger scale production of works in alternative formats - creating an exception where no licensing scheme covered the works in question. Further, the consultation paper advocated greater elaboration of what would and what would not be permitted under these exceptions. This approach has subsequently been endorsed by organisations representing visually impaired people and/or engaged in producing accessible copies for them, including the Royal National Institute for the Blind. For their part, right holder organisations have said that if an exception were to go ahead, they would broadly support the approach advocated in the consultation paper. Thus, it is this approach upon which the Bill is based.
The Three-Step Test
10. All exceptions to copyright are required to be within the so-called three-step test. This says that limitations or exceptions to exclusive rights must be:
(1) confined to certain special cases;
(2) that these cases must not conflict with the normal exploitation of a work; and
(3) that these cases must not unreasonably prejudice the legitimate interests of the right holder.
Although this test arises from the Berne Convention for the protection of literary and artistic works, it is repeated in the section on copyright and related rights in the World Trade Organisation agreement on Trade-Related Aspects of Intellectual Property Rights and so governs the scope of limitations and exceptions to exclusive rights in certain copyright and related areas not covered by Berne. The three-step test is also an overriding qualification to the list of permitted exceptions in the EC Copyright Directive. The Bill has been drafted in conformity with this test in that:
EC Copyright Directive
11. The EC Directive on copyright and related rights in the information society which was formally adopted on 9 April 2001 (Directive 2001/29/EC) must now be transposed into the national laws of EU Member States before 22 December 2002. While this Bill is not concerned with the implementation of the Directive, it has been drafted in conformity with Article 5(3)(b) which allows exceptions or limitations to rights for 'uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability'. The two-part exception provided for in this Bill allows accessible copies to be made only for visually impaired people for a reason directly related to, and to the extent required by, their disability. Moreover, nothing in the Bill would permit accessible copies to be made for commercial uses or for profit.
COMMENTARY ON CLAUSES
New section 31A
12. Clause 1 inserts a new section 31A into the Copyright, Design and Patents Act 1988 providing that a single accessible copy of a work can be made by or on behalf of a visually impaired person for personal use without permission from the right holder and without infringement of copyright subject to several conditions. It would not be within the scope of the exception for a teacher to have a single book and make enough copies to supply a whole class of visually impaired pupils. Either the teacher would need to buy an original for each pupil and then make a copy of each or use the second exception set out in Clause 2 of the Bill.
13. Subsection (1) of new section 31A says that this exception applies to literary, dramatic, musical or artistic works. These are defined in Part 1 of the Copyright, Design and Patents Act 1988. In practice this means the exception applies to novels, instruction manuals, articles in newspapers, scripts for plays, sheet music, maps, drawings and paintings. However this is qualified by subsection (2) which specifically excludes the making of an accessible copy of a musical works which involves recording a performance of the musical work on a sound recording. Owners of copyright in music are very dependent on royalties for the making of sound recordings of the music. It would conflict with the normal exploitation of their work to allow reformatting to produce competing sound recordings or, possibly, the first sound recording of the music being performed. A visually impaired person can, in any case, enjoy such a sound recording without any re-formatting. It will still be possible, under this exception, to enlarge sheet music by photocopying or to put it in a format like braille and the notes could even be read out onto a sound recording.
14. As some of the types of alternative format that might be produced would involve making an enlarged photocopy or similar photographic copy of published material subsection (1) of new Section 31A applies the exception to the copyright protection publishers enjoy for the typographical arrangement of a published edition.
15. Subsection (1) provides that the visual impairment must be preventing the person from accessing the copyright material. The intention is not to rule out the operation of the exception where it would, with difficulty, be possible for a visually impaired person to read something, for example with a hand-held magnifier, but this would lead to reading at a considerably slower pace than a sighted person. Also, the exception applies both where there are parts of the copyright material that can only be read with difficulty and where the material cannot be read at all.
16. Subsection (1) also states that the visually impaired person must have lawfully obtained an original copy of the work. This means they must have either bought a copy of it or have borrowed it from the library or referred to it in a reference library, but only where each of these situations did not involve any act that was unlawful.
17. Under new Section 31A there is no requirement that the copyright material has to have been published to be converted into an alternative format. A visually impaired person may also have lawfully obtained unpublished copyright material such as an unpublished thesis or a letter in their workplace - the exception applies in the same way to such materials as it does to published works.
18. Subsection (1) acknowledges that a visually impaired person themselves might make an accessible copy or they might need someone else to do it for them. There is no limitation placed upon who might help them. A visually impaired person might ask a transcription agency to make the accessible copy for them or take their original to a library to be enlarged. Equally, a visually impaired employee might ask their employer to make an accessible copy of an instruction manual they need for work or a letter sent to them in connection with their job. Even if the employer is a commercial enterprise, this is not copying for commercial uses since the copy would be for the personal use of the employee. However, subsection (4) provides that it will be unlawful for anyone making an accessible copy for a visually impaired person under this part of the exception to charge them any more than the cost of making that accessible copy.
19. Subsection (3) says that any accessible copy must carry a 'sufficient acknowledgement'. This is defined in section 178 of the 1988 Act as:
" an acknowledgement identifying the work in question by its title or other description, and identifying the author unless
(a) in the case of a published work, it is published anonymously;
(b) in the case of an unpublished work, it is not possible for a person to ascertain the identity of the author by reasonable inquiry;".
20. Subsection (5) says that a visually impaired person must not keep the accessible copy if he or she no longer has lawful access to the copyright material. This means that a visually impaired person can keep the accessible copy so long as they still have a copy of the copyright material in their possession or are actively referring to it. If the original work is on loan from a library or is a book belonging to the school, the accessible copy must either be destroyed or it can be given to the library or school, provided it is only kept for future use by other visually impaired people who would have been entitled to have an accessible copy made anyway. Similarly a visually impaired person could lend or give an accessible copy of a work to a visually impaired friend who would qualify to have such a copy made anyway, in which case they would have to give their friend the original work along with the accessible copy.
21. Subsection (6) says that the exception does not apply if the visually impaired person can access the copyright work in the form or forms in which it has been published (by or with the authority of the copyright owner). 'Published' here has the same meaning as in Part 1 of the 1988 Act so as to include both issuing copies to the public and making copies available by an electronic retrieval system. Subsection (6) needs to be read with the definition of "accessible copy" contained in section 31C. In practice it means that it will not be possible to make an accessible copy for a visually impaired person under the exception where a copy which would provide them with equivalent access to a sighted person has already been published. This does not mean that if a large print edition of a book has been published, a visually impaired person with little to no useful sight would not be able to have a copy made in braille if that was the format that would afford them equivalent access to a sighted person. Similarly the existence of a published braille copy would be of no use to a visually impaired person who has never had braille tuition or who knows only enough to label their groceries. They might require a tape copy. Again, a 16 point large print commercially produced copy of a work might be available but the visually impaired person may only be able to read a copy in 24 point with ease in which case the exception will apply.
New section 31B
22. The proposed new section 31B into the 1988 Act sets out when, by whom and subject to what conditions multiple accessible copies of a copyright work can be made for and supplied to visually impaired people without infringement of copyright. This part of the exception applies to the same range of material as new section 31A, but it only applies to copyright material that has been published commercially (as defined in Part 1 of the 1988 Act). Many of the conditions placed upon the making of single accessible copies apply equally to the provisions for the making of multiple accessible copies. These include: the exclusion of the making of sound recordings of performances of a musical work; the proviso that the exception does not apply where accessible copies have already been published with the authority of the copyright owner; a requirement to include a 'sufficient acknowledgement' on accessible copies and the proviso that where there is a charge to visually impaired people for accessible copies, these must be limited to cost-recovery.
23. Subsection (1) says that only educational establishments or bodies conducted not for profit may rely on this exception and repeats the proviso that the work must have been bought or otherwise lawfully obtained (i.e. made from a library copy). Educational establishments are defined in the 1988 Act and subsequent regulations and include schools, colleges, and universities. Bodies not conducted for profit will include charities, libraries, voluntary sector agencies engaged in transcription and alternative format production (whether large or small) and local authorities - many of whom have Visual Impairment Resource Teams within the education authority.
24. Educational establishments are specified separately in this new Section even though most would fall within the definition of a not-for-profit body. This is in order that any commercial educational establishments with visually impaired students may act under the exception. Subsection (2) then qualifies this by saying that educational establishments can only make accessible copies under subsection (1) if those copies are for the educational purposes of that establishment. This ensures that any commercial educational establishments cannot make accessible copies for commercial uses and are precluded from, for example, selling them on to other educational establishments.
25. Subsection (1) (d) of new section 31B specifies that where copies of a work have been published with technical protection measures that prevent or limit the further copying of the work, accessible copies supplied to visually impaired people must equally be protected by those measures, to the extent that this is practical, unless there is an agreement to the contrary with right holders. 'Technical protection measures' refers to software which the publishers of e-books, or material on CDs or DVDs might add to prevent anyone making a copy of that disk or to allow only one copy to be made. Such measures have the undesirable effect of preventing the material from being reformatted and made accessible. Hence, Article 6.4 of the EC Copyright Directive states that the beneficiaries of exceptions to domestic copyright law shall be afforded a means of overcoming these barriers. This Bill does not say how the technical measures are to be overcome in order to make the accessible copies in the first place as this will be an issue dealt with through the implementation of the EC Directive. The Bill is premised on the fact that implementation of the EC Directive will afford such means, in which case there is a need to ensure that such protection measures can be put back into accessible versions of the work.
26. In practical terms subsection (1) (d) will only come into play where the producer of accessible formats distributes material in a digital medium. So, if a body acting under the exception sent a digital text out on a disk having obtained it from a protected source, they may have to put the protection back on. Whether this is practical or not will depend on what format the accessible copy is in, rather than the expense of continuing to include technical measures. It would, for example, be impractical to attempt to apply technical protection measures included on a disk original when making a paper Braille copy.
27. Under subsection (1) (e) of new section 31B any educational establishment or not-for-profit body making accessible copies must notify the copyright owner of this within a reasonable time of making the copies unless it is not possible by reasonable enquiry to ascertain the same and address of this person. This subsection also allows for such notifications to be received by a body representing more than one copyright owner. Under subsection (2), such bodies could then notify the Secretary of State that they were acting in that capacity - for which copyright owners and in what types of material. The intention is that the Secretary of State would then publicise such notifications perhaps via the Patent Office website, for example.
28. Under subsection (6) of 31B, educational establishments and not-for-profit bodies producing material in accessible formats for visually impaired people can keep intermediate copies made as a necessary part of the production process but only against a possible future need for further copies of the same material in accessible formats for visually impaired people. Such 'intermediate' copies will be electronic copies - that is the text of a work put onto a disk. This is the first thing anyone making copies of a work in accessible formats such as large print or braille do. Rarely are disk copies of the original provided by publishers. The intermediate, electronic copy enables the producer to customise the text in large print or to add formatting instructions necessary to produce a copy in braille.
29. Further, under subsection (7), they may transfer such intermediate copies, for example by emailing them, to other organisations entitled to make accessible copies. In practice this is needed to eliminate unnecessary delays in the production of accessible copies. This subsection says that when such copies are transferred, the body making the transfer must be satisfied that the recipient does not intend to use the intermediate copy in a way that would infringe copyright or to allow anyone else to use it in such a way. In practice this means bodies acting under the exception will only transfer intermediate digital copies to organisations they know and trust.
30. Subsection (8) (a) provides that this exception does not apply to the extent that there is a licensing scheme which has been notified to the Secretary of State covering the work(s) in question. If there is such a scheme, then the body concerned will need to get a licence under that scheme (if they do not already have one) and produce accessible copies in accordance with its terms. However, the existence of a licensing scheme cannot take away the basic entitlement of such bodies to make accessible copies available. Many licensing schemes cover only particular formats or types of material. So if there was a licensing scheme covering the making of large print copies of certain publishers' books, schools or charities would still be able to use the exception to make copies of those books in other accessible formats for visually impaired people who cannot read the large print copies. Similarly, if a scheme covered certain works but not others, those not covered could be made and supplied in accessible formats under the exception.
31. Subsection (9) reinforces this by providing that a licensing scheme which has terms and conditions that restrict the doing of anything that would have been possible under the exception cannot override the exception. There is just one exception to this. Where a copyright work is no longer being published by or with the authority of the copyright owner, then if there are reasonable grounds for preventing or restricting the making of accessible versions within the conditions set out in licensing schemes, these shall be enforceable. Reasonable grounds might include the situation where a copyright work is no longer being published because it contains libellous or inaccurate information.
32. Until the licensing body intending to operate the scheme notifies the Secretary of State of sufficient details about the scheme or changes to it, the scheme will not have the effect of qualifying what can be done under the exception. Organisations entitled to act under new section 31B will effectively have a single point of contact to ascertain what licensing schemes are in operation. The Secretary of State could publicise this information on the Patent Office website.
33. The 'exception if no licensing scheme' formulation used in this Bill is similar to the formulation used for existing (partial) exceptions in the educational area, particularly sections 35 and 36 of the Copyright, Designs and Patents Act 1988 that specify certain infringement free activities if, or to the extent that, there is no licence available or licensing scheme established in respect of the use. This formulation has the advantage of removing barriers to quite generous amounts of copying of copyright material while at the same time making sure that right holders who decide to set up licensing schemes can obtain appropriate remuneration if they wish. To rule out appropriate remuneration would be contrary to the Berne Convention. Currently many such schemes operate a zero-royalty policy in view of the high cost of transcription to voluntary agencies, although some do not. If right holders were to impose unreasonable charges which failed to take into account all relevant circumstances, and this could include the high production costs facing bodies acting under the exception, this could be challenged before the Copyright Tribunal. The Copyright Tribunal is a body that is established by the Copyright, Designs and Patents Act 1988 specifically for adjudicating on the terms and conditions of copyright licensing schemes. Similarly if licensing schemes were difficult to join and therefore caused delays in making accessible copies available they could be challenged in the Copyright Tribunal.
34. Subsection (12) of section 31B gives the Secretary of State a back-stop order making power enabling him to curtail the effect of the exception in cases of serious abuse. This power is in addition to the traditional remedies available to right holders for copyright infringements. In cases of serious copyright infringement arising from new section 31B, the Secretary of State would have several options. Under subsection (12) (a) he could make an order stating that a specific body is no longer entitled to act under the exception. Alternatively if it is clear that there is a pattern of abuse amongst certain types of educational establishment or not-for-profit bodies he could make an order excluding specific kinds of schools or voluntary organisations from acting under the exception. Further, under subsection (12) (b) he could make an order providing that exception section 31B does not apply to the making of certain forms of accessible copies if there is a pattern of abuse involving particular formats. This subsection empowers him to do any or all of these things if necessary and justified.
35. The order making power also applies where the accessible copies that have led to infringement of copyright were made under a licence covered by a licensing scheme that overrides the applicability of the multiple copies exception. Where a body has been prohibited from acting under the exception, subsection (12) also provides that they shall not be entitled to a licence under any licensing scheme. This does not mean, however, that a licensing body could not allow them to join such a scheme but the body subject to an order under this subsection would have no claim that could be taken to the Copyright Tribunal against refusal of a licence.
36. Subsection (13) says that in deciding whether to make an order the Secretary of State must consider the damage caused to the copyright owner by this infringement and decide whether it is greater compared to what might have been the case had no accessible copy been made. Ascertaining the damage caused to the copyright owner would involve looking at whether they had lost revenue they might otherwise be entitled to as a result of a body's unlawful actions or whether their moral rights were seriously compromised (e.g. if large numbers of accessible copies were circulated which were not an accurate transcription of the text of a book and damaged their reputation). If a body acting under the exception had circulated large numbers of accessible digital copies of a popular novel and had failed to reapply technical protection measures leading to several copies being unlawfully bought and sold and perhaps the material even being put on the Internet, the right holder may well have lost significant royalties as a result. In this kind of situation the Secretary of State might well seek to use his order-making powers. However, if the unlawful act in question involved a body supplying a few braille copies of much needed text books which were subject to a zero-royalty licensing scheme without bothering to join the scheme, the right holder would not have suffered damage and the power probably would not be used (although the offending body could still face legal action).
|© Parliamentary copyright 2002||Prepared: 13 March 2002|