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Presentation to Legislative Committee Considering Bill C-11: An Act to Amend the Copyright Act

Date: 
Monday, February 27, 2012

Presentation from the Alliance for Equality of Blind Canadians to the Legislative Committee considering Bill C11

February 27, 2012

Presented by: Marc Workman

Introduction

I want to begin by thanking the committee on behalf of the Alliance for Equality of Blind Canadians for inviting us to appear. We appreciate the opportunity. My name is Marc Workman. I am a National Director with the AEBC. The Alliance for Equality of Blind Canadians is a national organization made up primarily of blind, deaf-blind, and partially sighted individuals. We advocate on a wide variety of issues at the local, provincial, and national level. To learn more about us, you can visit our website at www.blindcanadians.ca.

Preamble

Copyright legislation and its reform is of deep importance to blind Canadians. Access to printed material, much of which is protected by copyright, is one of the key barriers that prevents blind people from fully participating in Canadian society.

That said, if it were up to us, blindness would have nothing to do with this discussion. I would rather not be here today representing blind Canadians. I would rather not rely on an exemption that allows me, persons I ask, or non-profits working for my benefit to create alternative format versions of inaccessible copyrighted works. Instead, I, and other blind Canadians, would prefer to borrow books from libraries just like our sighted counterparts. We would prefer to purchase books from online and brick-and-mortar bookstores just like our sighted counterparts—in short, we want to be able to access copyrighted works just like our sighted counterparts.

Unfortunately, blind Canadians cannot do this today. Less than 10%, some say less than 5%, of printed material is available in an accessible format, and those few accessible versions exist only because inaccessible materials are reproduced in an accessible form.

I would like you to keep this point in mind as you listen to my recommendations. These recommended changes are necessary only because publishers and copyright holders are creating a product that could be, but is not, accessible to blind people. Genuine access requires not an exemption, but a commitment on the part of publishers and copyright holders to make accessible products. We do not want to rely on an exemption; we have to rely on one. Because of that, I urge you to make the exemption as effective as possible by adopting the recommendations I will make throughout the rest of this presentation..

Recommendation 1: Technological Protection Measures

While we support the exemption in Section 41.16 of Bill C11 that permits the circumvention of Technological Protection Measures for the purpose of producing alternative format versions of copyrighted works, this right, for all practical intents and purposes, will not be one that the average blind Canadian can exercise.

Breaking the digital lock on copyrighted works is almost certain to be beyond the means of the average blind Canadian. Not only is some level of technical expertise required, which many will not possess, there is no guarantee that the circumvention tools will be accessible even to the most tech savvy of blind Canadians.

 

Moreover, circumventing TPMs places a significant burden on those organizations that produce alternative formats for the benefit of blind Canadians. These organizations will have to hire and maintain staff with the technical expertise to break the digital locks.

 

Despite that Section 41.16, sub section 2, of Bill C11 also provides an exemption to those offering services or manufacturing products for the purpose of circumventing TPMs in order to produce alternative formats, the exemption is permitted only to the extent that these services or circumvention tools do not "unduly impair the technological protection measure". It is not clear what exactly it would mean not to "unduly impair" a TPM, and this ambiguity is very concerning.

Given the general restrictions on circumventing TPMs, it is unlikely that the necessary tools will be widely available and readily accessible to blind Canadians and the organizations working on their behalf. The AEBC recommends, along with thousands of other Canadians and organizations that make up Canadian society, that the restrictions on circumventing TPMs be tied to actions that would otherwise be violations of copyright. Not only is this balance better for Canadian society in general, but it is the best way to ensure that blind Canadians have access to the tools that are necessary for them to access copyrighted works that they have a legal right to access. Without this change, the right of blind Canadians to circumvent TPMs to produce alternative formats will almost certainly be a right that few of us can exercise.

Recommendation 2: For-Profit Production of Alternative Format Materials

Section 32 of the Copyright Act currently only exempts non-profits from having to attain permission from the copyright holder in order to produce an accessible version of the work. However, under our present system, only a fraction of copyrighted works are ever converted to an accessible format.

There is a growing industry of for-profit companies that are involved in the production of accessible formats. The AEBC recommends removing the limitation to non-profits in the exemptions in both the Copyright Act and Bill C11. We believe this will lead to a significant increase in the availability of alternative format versions of copyrighted works.

Recommendation 3: Sending Alternative Formats Outside Canada

The AEBC applauds the attempt to clarify our laws with respect to sending alternative formats outside Canada. This brings us one step closer to realizing an international agreement that will increase the cross-border exchange of alternative formats and significantly reduce the duplication of work taking place around the world. However, Section 37, paragraphs A and B, of Bill C11 limit the ability of organizations to send alternative formats to other countries to those cases where the copyright holder is a Canadian citizen or a citizen of the country to which the material is being sent. This limitation places a significant burden on those organizations that would exchange alternative formats across borders, and it restricts the number of works that may be exchanged.

The AEBC recommends that the only restrictions be: 1) whether the work was legally produced in Canada and could legally be produced in the country to which the work is sent, and 2) whether the work is already available in an accessible format in the country to which the work is being sent. This reduces the burden on organizations that send these works to other countries and dramatically increases the number of works that may be sent.

Recommendation 4: Large Print

Section 32, subsection 2, of the Copyright Act limits the scope of the Section 32 exemption by excluding the making of large print books. This limitation harms print disabled Canadians of all ages but is particularly harmful to older Canadians, and it's only going to become more of an issue as the population ages and more and more Canadians experience sight loss and become reliant on large print. The AEBC recommends that this limitation be removed from the Copyright Act.

Recommendation 5: Adaptation of Cinematographic Works

Section 32, subsection 1, paragraph A of the Copyright Act, also limits the usefulness of the Section 32 exemption by excluding the adaptation of cinematographic works to make them more accessible. This limitation is partly responsible for the extremely limited availability of films that include descriptive video, which enables blind Canadians to better understand what is being communicated by the film. The AEBC recommends that this limitation also be removed from the Copyright Act.

Similar limitations concerning large-print production and adaptation of cinematographic works are contained in Section 37 of Bill C11. This section deals with sending alternative format versions of copyrighted works outside Canada, and in the proposed Section 32.01 (2), large-print materials and cinematographic works are excluded from the exemption. We believe this subsection should also be removed.

Conclusion

Balancing the rights and interest of copyright holders and consumers is difficult. I expect some copyright holders will be concerned about expanding the Section 32 exemption in the ways I've suggested. However, as I said at the outset, any copyright holder that wishes to void the exemption only has to do one thing, make the product accessible. Until this becomes the norm, we must rely on the second best solution of an exemption. Because it is the case that we have to rely on this exemption, we need to make the exemption as effective as possible. I believe implementing these 5 recommendations will bring us closer to that goal.

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