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2001-02: Application for Funding from the Court Challenges Program

Whereas, the National Federation of the Blind: Advocates for Equality must demonstrate its leadership in ensuring people who are blind, vision impaired and deaf-blind have as much accessible print content as possible; and

Whereas, the library and special services are not meeting the need of accessible print content for people who are blind, vision impaired and deaf-blind; and

Whereas, a different approach from past efforts are required to improve the availability of accessible print content in Canada; and

Whereas, a potential Charter of Rights and Freedoms challenge of the Copyright Act and its underlying discrimination might exist;

Therefore be it resolved, at the NFB:AE 2001 Convention assembled in Vancouver, British Columbia, that the membership ratify the Board's unanimous decision to apply for case development funding from the Court Challenges Program of Canada and follow through on tasks related to the application which is included in Schedule "B".

Schedule "B"

National Federation of the Blind: Advocates for Equality
APPLICATION FOR CASE DEVELOPMENT FUNDING
The Court Challenges Program of Canada

May 4, 2001

Prepared by: Ross Eadie, 1ST Vice-President
National Federation of the Blind: Advocates for Equality

Contents

  1. Who is Involved
    1. Other Supporters
    2. Legal Researcher Analyst
  2. Introduction
    1. Definition
    2. Law, Policy or Practice and Arguments
    3. Importance of Case
    4. Remedy
  3. Facts
    1. A Brief Description of Content Accessibility Status Today
    2. The Inequity and Discrimination in the Copyright Act
    3. The Government of Canada's Authority
  4. Consultation Funding
    1. Purpose
    2. Who
    3. When and Where
  5. Case Development Work Plan
    1. August, 2001 to October, 2001
    2. November, 2001 to January, 2002
    3. February, 2002 to May, 2002
  6. Budget

I. Who is Involved

The primary applicant for this case development funding is the National Federation of the Blind: Advocates for Equality (NFB:AE). Our Organization is a national organization of blind, low-vision and Deaf-blind Canadians which was founded in 1992. Our principal work focuses on advocacy and public education about blindness, which is designed to expand opportunities for all blind, low-vision and Deaf-blind Canadians to participate more fully in all aspects of Canadian society. Our articles of incorporation and more information about organizational activities can be found on the Internet at the web address below. The NFB:AE's contact information is as follows:

Suite 107, 1455 Ellis Street,
Kelowna, BC V1Y 2A3
Voice: 1-250-862-3551
Fax: 1-250-862-3966
Toll free: 1-800-561-4774
Email: nfbae@home.com
Web site: www.nfbae.ca

1. Other Supporters

There are two other consumer, advocacy organizations that have been contacted regarding this application. More organizations and individuals will be contacted for their endorsement once the Court Challenges Program makes a decision in this matter.

The Canadian Council of the Blind (CCB) has expressed interest in being a co-applicant. At the time of this application, the CCB is holding a Convention in Ontario and will need to approve its participation closer to the end of May, 2001.

The Council of Canadians with Disabilities (CCD) may be interested in being a co-applicant through its Access to Information Committee and Human Rights Committee. CCD's decision will follow the submission of this application as the final version of the application was created late Friday, May 4, 2001. A letter confirming each organization’s endorsement and participation in the case development application should be forthcoming in May or early June.

2. Legal Researcher Analyst

Sandra A. Goundry B.A., LL.B. has been the initial human rights lawyer contacted about the potential for this project. She would be engaged to conduct the analysis if case development funding is provided by the Court Challenges Program. Two examples of her work that make her an excellent choice for the project are: 1) she co-authored the paper entitled "Litigating for Disability Equality Rights: Promises and Pitfalls" funded by the Canadian Disability Rights Council; and 2) she prepared a paper on various means of guaranteeing persons with print disabilities the right to accessible information or alternate formats. Her resume is included with this application package. Her contact information is as follows:

301 - 535 Nicola St.
Vancouver, BC V6G 3G3
Voice: (604) 689-1891
Fax: (604) 689-1419
Email: sgoundry@istar.ca

Ms Goundry does not do litigation. She is however an excellent researcher and analyst as is demonstrated by her resume. The strategy here is to have her do the initial case development. If there is a good opportunity for a test case, a search would begin for the appropriate litigation lawyer. This strategy also allows the applicants to understand all the issues before moving ahead.

II. Introduction

In this case development application, Charter and human rights case law will be reviewed for relevance in relation to a challenge to the Copyright Act. Some of the court decisions that may contain aspects related to this application and that may be used to move ahead the arguments under this case development project are:

  1. Canadian Odeon Theatres Ltd. v. Huck [1985] , 18 D.L.R. (4th) 93, 6 C.H.R.R. D/2682 (Sask. C.A): 23
  2. Eldridge v. British Columbia Attorney General [1997] 3 S.C.R. 624
  3. British Columbia (Public Service Employee Comm.) v. B.C.G.E.U. [1999], 35 C.H.R.R. D257 (" Meiorin")

1. Definition

'Content' refers to types of published works such as literature; fiction and non-fiction books; entertainment, hobby, scientific and various special interest magazines; manuals; laws; newspapers; educational books, materials and tutorials. Music is accessible to those who can hear and does not pertain to print disabilities. Visual information from films and videos are not part of this case development because descriptive narration is an issue to be dealt with by the Canadian Radio and Telecommunications Commission. Art works such as paintings and statues are also excluded from this proposed analysis of the Copyright Act.

2. Law, Policy or Practice

The purpose of this application for case development funding is to determine how the Government of Canada's authority over the Copyright Act is playing a role in the discrimination expounded in this application.

Upon establishing the discrimination and inequality within the Copyright Act, the case development analysis needs to determine if a potential Charter challenge exists for consideration by the Federal Court Trial Division. Essentially, the analysis should revolve around the following question: Are the current exemptions for a person with a perceptual disability inherently discriminatory or a hollow attempt to right an inequity?

The sections of the Charter of Rights and Freedoms that need to be overcome in arguing a test case are as follows:

  • In terms of s. 1, we want to prove that the answer is 'no' to the question: Do the Copyright Act provisions impair the rights of people with print disabilities as little as possible?
  • In terms of s. 15(2), we want to prove that the exemptions in the Copyright Act by no means constitute an appropriate legal vehicle that ameliorates the condition of inaccessible published content. We assert that the exemptions place a higher burden on the individual to produce accessible content for themselves.

3. Importance of the Case

Any case that arises out of this application will serve as a vehicle for people with print disabilities to obtain published content required to participate in the education, work and social systems of Canada. Students with print disabilities are constantly deprived of timely published content to achieve their education. Once educated, people working are denied professional content and information to stay on top of their profession and do their work. News, culture, entertainment, self-help, 'how-to', and many other fiction and non-fiction content categories are being denied to people with print disabilities. Participating in today's society requires a person to be informed and well read.

This potential case would also put access to alternate formats of published content on the same level as access to the built environment and transportation. These two areas of access place the burden of accessibility on the provider of the facility or service.

4. Remedy

A remedy that involved amending the Copyright Act to reflect the copyright holder's responsibility would be the best outcome. Any potential remedy needs to include the following features:

  1. Publishers offering formatted computerized content to purchasers of their copyrighted material.
  2. Publishers making a reasonable attempt and commitment to producing their content in alternate formats such as large print, audio, and Braille during their own publishing  processes at their own cost.
  3. Publishers contribute a free copy in electronic format to producers of alternate formats where it is unreasonable for the publisher to do the alternate formats themselves.
  4. Purchasers of content can keep an alternate format copy of the work instead of returning it to a special library service.

A remedy to the discrimination inherent in the Copyright Act should also involve the Government of Canada making money available to publishers to include alternate formats in their production process. This will help ensure publishers meet their obligations to both people with disabilities and Canadian publishers.

III. Facts

People with print disabilities require alternate formats to achieve equality in society. The principle of equality means people with disabilities have the right to goods and services which will give them equality of opportunity and outcome. People with disabilities have the same rights and the same responsibilities as other Canadians. They are entitled, as others are, to the equal protection and the equal benefit of the law and require measures for achieving equality, consistent with the Canadian Charter of Rights and Freedoms. This part of the application attempts to describe the problems in achieving equality.

1. Brief Description of Content Accessibility Status Today

The current status of accessible published content is that of supplying approximately 10% to 20% of all published content to only a portion of people with print disabilities. Publishers in general have left the production of audio, Braille and large print versions of their publications to special services such as the Canadian National Institute for the Blind's library services. Not for profit, social service agencies pay for the production from fundraising dollars, and the Government provides grants to produce audio, Braille and large print versions. These alternate formats of published content are then lent to the print disabled users. Even students purchasing books for study are not allowed to keep the accessible copy in many cases.

Many publishers now have their titles available in computerized electronic text, but only a few publishers allow the purchaser of content to have the electronic version. Publishers have set up a committee to consider issues surrounding accessible alternate formats. Their suggested approach, along with government and some not for profit, social service agencies, is to establish a clearinghouse of electronic text for use by only alternate format producers at their own cost of production.

To date, publishers have made some abridged versions of their content in audio format. The cost to users of these audio versions is higher than the cost to purchase the full print copy. Where the full work is available on audio cassette, the price is often well beyond the means of the average person with a print disability. Publishers themselves have not produced Braille versions in almost every case. Large print is also not produced by publishers on any large scale.

2. The Inequity and Discrimination in the Copyright Act

Where no accessible copy of published content exists, a person with a perceptual disability can make an accessible copy on audio cassette or in Braille. At first glance, this provision in the Copyright Act recognizes the need of a person with a perceptual disability to use alternate formats, and it provides an exception to copyright that allows the person to make a copy without penalties for violating the law. The Copyright Act says copying a published work is illegal without permission from the copyright holder. Without all published content produced in alternate formats, this provision is needed to allow a person to avoid breaking the law when attempting to meet his or her needs.

However, this Copyright Act provision has an underlying effect. The Copyright Act is basically saying it is okay to ignore the production of alternate formats because a person with a perceptual disability can make his or her own copy. Optical character recognition (OCR) software and scanners are believed to make it easier for the individual to produce an alternate format copy. The reality is that people with print disabilities have a hard time finding volunteers to create audio copies, and everyone does not own or know how to use the computer equipment. Braille can be produced from the electronic copy, but the process involves editing and other procedures that make it difficult to make a copy. Equipment again is a barrier in producing Braille.

For those who can use it, computerized electronic copies of most published content exist due to the process in which publications are created today. Many publishers are unwilling to provide this accessible material when the print copy is purchased by the content user. As demonstrated in the following email message, the copyright holders are refusing the requests made by the consumer based on an assumption that the person with a print disability will violate the Copyright Act. However, there are a few publishers who will grant the request for certain works and types of content, but the vast majority refuse to provide the accessible copy.

An email message:

Hello all,

I am a college student studying Social Work. I plan on continuing to University. Obtaining text books and other relevant information in alternate format is very difficult. Very little is available on tape, even less is available in Braille, e-text and online. I usually have to turn to family and friends to read the material on to tape.

I think that a policy needs to be in place; so there are no copyright issues. Copyright issues are usually the barrier I run into most often. I do utilize libraries for blind in Canada and the United States. Has anyone had a similar experience?

Caroline

Another systemic problem related to not having alternate formats available is related to libraries. Libraries make attempts at providing alternate formats, but the cost is prohibitive given the downsizing of their budgets. People with print disabilities cannot utilize these public facilities because of the libraries' inability to purchase alternate formats of published content. Everyone is limited to the special library services to provide alternate formats.

3. The Government of Canada's Authority

While private sector publishers are producing the content, the Government of Canada applies laws, policies and practices to ensure there is a strong vital publishing industry. In addition to maintaining the Copyright Act, the Government of Canada is responsible for a number of items related to content from the private sector. Some of these are as follows:

  1. Operates the National Library of Canada that provides a wide variety of services including registering Copyrightable works and ensuring Canadian culture is available to Canadians.
  2. Provides grants and similar monies to private sector publishers to create Canadian works.
  3. Funds and appoints people to the Canadian Radio and Telecommunications Commission which applies regulation to Copyrightable works like television shows that can be regulated to provide alternate formats such as descriptive narration and captioning.
  4. Recognizing the new information age there has been a great deal of effort put into making content available on the Internet, including grants to allow industries to develop the facilities to deliver information. Many web sites still need to be made accessible for those who have the ability to use the Internet.

The copying provisions in the Copyright Act and a provision for individuals to recoup the new Copyright Levy also demonstrate the Government of Canada's acceptance of responsibility for equality related to people with print disabilities. Precedence has been set by amending the Copyright Act to recognize the inequality related to people with at least perceptual disabilities.

For many years, people with print disabilities have tried to have the Government of Canada recognize the need to make changes to facilitate the provision of alternate formats. Publishers have used undue hardship type arguments against producing alternate formats like Braille. Today's technology has made it easier to produce these alternate formats. Publishers of content could incorporate this production into their publishing process. Offsetting the implied discrimination should be accomplished by amending the Copyright Act or its regulations to reflect a reasonable attempt for copyright holders to produce alternate formats.

IV. Consultation Funding

There are potentially two consultations that may be required as described under the following headings.

1. Purpose

First, a Copyright lawyer may need to be consulted with on various aspects of how human rights interact with copyright law. Second, a producer of alternate formats and/or a technician may need to provide advice on reasonableness as it relates to the cost of producing accessible content.

2. Who

Nobody has been selected to provide either consultation at the date of this application. Discussion between the applicants and human rights lawyer will be conducted in order to select these consultants. The human rights lawyer will set out the questions to be answered during the consultations if needed, and coordination of these consultations will be conducted by one of the applicants on a cooperative basis.

3. When/Where

The case development work plan designates when the consultations might be conducted. The location of these consultations will depend on what city the consultants are based in. Given the type of consultation being planned can be done by electronic means and/or by telecommunications.

V. Case Development Work Plan

August, 2001 to October, 2001

  • Identify and gather relevant documents and materials including academic articles, government reports, minutes of Parliamentary proceedings and industry discussions 5 hours
  • Consult with client, experts on copyright, experts on technical production issues in publishing industry, government policy analysts, and review materials 15 hours

November, 2001 to January, 2002

  • Identify, collect and review relevant legislation, policy and case law 10 hours
  • Develop outline and framework for analysis of legal issues 5 hours

February, 2002 to May,

  • Draft legal memo 30 hours

VI. Budget

The budget has been submitted in a spreadsheet file sent with this document. Some note worthy portions are as follows:

  • A preliminary estimate of legal research and analysis is a work plan of 65 hours as specified in the previous section. However, in the budget, we have allowed for 75 hours at Ms. Goundry's rate of $125.00 because this case development is more than likely to be complex and take more time.
  • Consultation with a copyright lawyer can cost up to $300.00 per hour. Other specialists or technicians would be closer to $150.00 per hour. Therefore, the hourly rate specified in the budget uses $150.00 as the rate for 32 hours. However, a pro bono or cost has been designated under the client/pro bono column to reflect 15 hours of pro bono or cost at $150.00 per hour.
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