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Conservatives Block Amendments Aimed at Increasing Access for Canadians with Perceptual Disabilities

On March 13, the legislative committee considering Bill C11 finished its clause-by-clause review of the bill. Some forty or so amendments were proposed altogether, the majority of which came from the opposition parties. Approximately half a dozen of the amendments were directly related to the ability of people with perceptual disabilities to access copyrighted works. All but one of these amendments—the one put forward by the Conservatives—were defeated by the Conservative members of the committee. If you're interested, you can watch the webcast of the March 13 meeting.

Several of the recommendations put forward in the AEBC's presentation to the legislative committee were entirely ignored. Our recommendations concerning for-profit production of alternative formats, production of large print, and the adaptation of cinematographic works did not receive any consideration during the clause-by-clause review. Amendments were proposed regarding sending alternative formats outside Canada and the clause allowing the circumvention of technological protection measures (TPMs) for the purpose of alternative format production; however, the Conservative amendment dealing with sending alternative formats outside Canada did not address the concerns we raised, and the Liberal and NDP amendments regarding the circumvention of TPMs were all defeated.

The Liberals and NDP supported every amendment regarding access for people with print disabilities, including the Conservative amendment. To start there, the Conservative amendment changed Bill C11 such that a non-profit organization sending alternative formats outside Canada will not be able to be sued by a copyright holder even if that copyright holder is neither a citizen of Canada nor a citizen of the country to which the work is being sent—that is, provided that the organization has made a good faith effort to determine the citizenship of the copyright holder. Note that, under Bill C11, alternative formats may only be sent outside Canada if the copyright holder is either a Canadian citizen or a citizen of the country to which the work is being sent. The AEBC's recommendation was that any alternative format that was legally produced in Canada and could legally be produced in the country to which the work is being sent should be allowed to be sent outside Canada. The Conservative amendment makes it so that a copyright holder can merely file an injunction, not a law suit, against an organization to stop the organization from sending the alternative format outside Canada. This is certainly a positive amendment, but it falls far short of adopting the recommendation made by the AEBC.

Turning to some of the amendments that were defeated, there were several concerning both importation of alternative formats and the circumvention of TPMs. Perhaps the most important that directly concerns people with perceptual disabilities would have removed the phrase "to the extent that the services, technology, device or component do not unduly impair the technological protection measure" in the following paragraph from Bill C11:

(2) Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers or provides services to persons or organizations referred to in subsection (1), or manufactures, imports or provides a technology, device or component, for the purposes of enabling those persons or organizations to circumvent a technological protection measure in accordance with that subsection, to the extent that the services, technology, device or component do not unduly impair the technological protection measure.

What this means is that a person can only assist a print disabled person or an organization working on her behalf to remove a digital lock in order to produce an alternative format if the person does not "unduly impair the technological protection measure". In other words, if a person wants to provide a service or to manufacture and distribute a tool designed to remove the digital lock from an e-book in order to produce a braille version, the service would have to be performed, or the tool would have to function, in a way that doesn't "unduly impair the technological protection measure".

There are two things that concern me about this clause. Firstly, it is simply too ambiguous; it is not at all clear what it would mean to "unduly impair a technological protection measure". Even more concerning, though, is that this is targeted at those who would provide services and manufacture and distribute technologies for the purpose of breaking digital locks to produce alternative formats. The same limitation regarding not unduly impairing a TPM does not apply for a person with a perceptual disability, another person acting at his or her request, or an non-profit organization working for his or her benefit. What the "unduly impair" caveat does is discourage those who would otherwise offer services or manufacture and import technologies for the purpose of removing TPMs in order to produce accessible versions of copyrighted works.

The AEBC's recommendation on this issue was actually to tie prohibitions against circumventing TPMs to infringements of copyright, which would make the "unduly impair" caveat superfluous, and the NDP and Liberals put forward amendments aimed at this exact change, but those amendments were defeated. It is surprising and rather disappointing that the more modest amendment to remove the "unduly impair" caveat was also defeated.

As noted in the preamble of the AEBC presentation on Bill C11, copyright reform is a second best solution. What we need for equal access is a commitment on the part of copyright holders and the publishing industry to produce accessible versions of their products from the outset, not an exemption that allows accessible reproductions to be created after the fact. That said, with this reform of Canadian copyright legislation all but complete, it is very unfortunate that more was not done to increase the access that blind, deaf-blind, and partially-sighted Canadians have to copyrighted works.

Disclaimer:

This blog is curated by the AEBC, but welcomes contributions from members and non-members alike. The thoughts, views, and opinions expressed in the Blind Canadians Blog are those of the contributing authors and do not necessarily reflect those of the AEBC, its members, or any of its donors and partners.
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