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Brief on Proposed Copyright Amendments

Introduction: This is a brief concerning the proposed copyright legislation from Heritage Canada and Industry Canada. I am writing as President of the National Federation of the Blind: Advocates for Equality (NFB:AE). The NFB:AE received its Articles of Incorporation from Ottawa in June of 1992. It became a nonprofit charitable society on January 1, 1995. The National Federation of the Blind is not an agency for the blind. We are the blind speaking for ourselves. Our membership is comprised of blind persons and sighted friends and supporters. The majority of the membership is blind. The Objects of the NFB:AE are as follows: June 13, 1996

  1. To serve as a vehicle for self-improvement by the blind and for public education about blindness throughout the Dominion of Canada.

  2. To function as a mechanism through which the blind and interested sighted persons can come together in local, provincial and national meetings to plan and carry out programs to improve the quality of life for the blind.

  3. To provide a means by which blind adults can share their experience and act as mentors for blind children and support parents in their efforts to improve educational opportunities for blind children.

  4. To create a climate through public education to increase opportunities for blind people in employment and social integration.

  5. To take any other action which will improve the overall condition and standard of living of the blind. At this time, there are NFB Chapters in Vancouver, Kelowna, Winnipeg and Toronto. The leadership on the national and local levels is elected by the membership. At the national level, all the Board Members must be blind. At the local level all Chapter Presidents and Vice Presidents must be blind. We publish The Canadian Blind Monitor, a magazine which stresses positive attitudes about blindness for blind Canadians and the public at large. For your information, the most recent copy is enclosed. The purpose of this brief is to provide suggested changes to Section 32 of the amendments to the Copyright Act, which were tabled in parliament on April 26, 1996.

In order to ensure equitable access to literary, scientific, artistic, musical and dramatic works for blind persons or other persons with disabilities who cannot read print and must use materials in appropriate alternate formats, the amendments for the first time specifically permit the making of copies in alternate formats without copyright infringement. However, subsection 32.(5) only allows one such copy. Given that most blind persons or persons with disabilities are not in a position to make their own copies and must work with agencies and libraries which produce materials in alternate format for a majority of their reading material, Subsection 32.(5) will in fact prevent equitable access to alternate format works.

In effect, what the Act provides for in law, will deny access to copyrighted printed material to those whose main access to print is through Braille and materials in audio or digital text which is exclusively for use by blind persons or other persons with disabilities.

Background:

On April 25, 1996, the Honourable Sheila Copps, Deputy Prime Minister and Minister of Canadian Heritage tabled long-awaited amendments to the Copyright Act in the House of Commons. According to press releases distributed at the time, the amendments include " . . . exceptions from copyright laws for . . . people with perceptual disabilities." We understand that the term "perceptual disability" is defined in the proposed amendments to the Copyright Act as follows: "perceptual disability" means a disability that prevents or inhibits a person from reading a literary, musical or dramatic work in its original format, and includes such a disability resulting from

a) severe or total impairment of sight or the inability to focus or move one's eyes

b) the inability to hold or manipulate a book, or

c) an impairment relating to comprehension.

Parenthetically, the National Federation of the Blind: Advocates for Equality deplores the avoidance of the term "blind" in government correspondence, publications and legislation. We suggest that the proposed term "people with perceptual disabilities" be changed to "blind persons and persons with disabilities". Our position supports Resolution 93-01 which was passed by the National Federation of the Blind in the United States. This Resolution is enclosed for your information. The Resolution states that "We believe that it is respectable to be blind, and although we have no particular pride in the fact of our blindness, neither do we have any shame in it. To the extent that euphemisms are used to convey any other concept or image, we deplore such use. We can make our own way in the world on equal terms with others, and we intend to do it." Because blindness is a print handicap and alternate formats to print are preponderantly used by the blind, we feel that it is important that the legislation recognize this fact in its usage of the term "blind" to represent the class of people which is most likely to be affected by Section 32 of the legislation.

The tabling of this legislation is the culmination of a consultation process that has lasted over 15 years. The Canadian National Institute for the Blind (CNIB), through the CNIB Library for the Blind and Government Relations Department, has participated in this process in order to ensure that the legislation meet the needs of blind persons and all other Canadians who cannot read print, and who must therefore read material in alternate formats. Alternate format means Braille, audio or digital text which is exclusively for use by blind persons or persons with disabilities. We understand that the intent of the CNIB has been, as it has been the stated intent of the government, to ensure that the legislation provide equitable access to literary, scientific, musical or dramatic materials for those who depend on alternate formats (such as Braille and materials in audio or digital text) for culture, education, and life-long learning. On May 5, 1996, we were told by Dr. Euclid Herie, the Chief Executive Officer of the CNIB, that as recently as one month before the legislative tabling of the amendments, the CNIB received assurances from both government officials and political staff that the specific exemptions requested were in the proposed legislation, and that there was no reason to believe that this situation would change.

Under Section 32 the proposed amendments for the first time do indeed specifically permit the making of reproductions in alternate formats without copyright infringement in order to meet the needs of persons with perceptual disabilities. Yet, even there, there is no reference to digital text, which is an important method of transmitting newspapers in synthesized speech by telephone. Our assumption is that blind Canadians would be prepared to buy books in digital texts that have been formatted appropriately for speech synthesizers, refreshable Braille displays and Braille printers. However, at the moment, Canadian publishers do not sell and have no intention of selling books in digital text which is formatted appropriately. Appropriate formatting of digital text means tagging major headings, subheadings and sub-sub headings in such a way that the blind person can find the structural breaks in the text, using programs that drive speech synthesizers, refreshable Braille displays and Braille printers. Programs that convert print to Braille using digital text must take into account the fact that Braille is contracted.

Thus, there is not a one-to-one correspondence between print letters and Braille letters. The average publisher is not in a position to deal with the specialized programming involved in dealing with the exigencies of the contracted grade two Braille code. Appropriately formatted books in electronic text are now available for sale from Recording for the Blind and Dyslexics, an agency which is headquartered in Princeton, New Jersey. Recording for the Blind and Dyslexics and any other agency for the blind which formats digital text especially for the blind, should not have to pay copyright fees because the authors and publishers do not make any financial contribution for the alternate formatting of this digital text.

The same standard applies for the provision of newspapers for the blind with digital text through speech synthesis. A service called "Newsline for the Blind" which is available from the National Federation of the Blind in the United States is a unique service of this type. We would like Canadian newspapers to be available to blind people in Canada through digital text without the imposition of copyright royalties to the service provider in Canada. The National Federation of the Blind: Advocates for Equality intends to provide this service in Canada. A description of the Newsline program provided by the NFB in the US is enclosed.

Some of the changes to the legislation mark significant progress in providing equitable access to information for those who cannot read print. However, Subsection 32.(5) of the Act only allows a person to produce a single copy of a literary, scientific, musical or dramatic work without copyright infringement.

Subsection 32.(5) will prevent a charitable organization such as the NFB:AE or the CNIB, which are persons under the terms of the Act, from producing, distributing, and circulating alternate format copies for individual blind persons or persons with disabilities who, though they technically benefit from the legal exception provided by the amendments, do not in most cases have the means, the time nor the technology to make a copy themselves. In effect, what the Act provides for in law, will deny access to copyrighted printed material to those whose main access to print is through Braille and materials in audio or digital text.

We see no purpose in restricting the exception provided by Section 32 to the making of a single copy of a work, given that: Agencies and libraries which produce materials in alternate formats for blind persons and persons with disabilities do not propose to compete with publishers and other copyright owners, but to serve a market which is not commercially served and which cannot easily read works in any other way. In any case, the amendments restrict the production of alternate format copies when a commercial product is available in a format that would accommodate the needs of blind persons or persons with disabilities. People who are not blind or disabled have no incentive to obtain books in alternate formats, and would prefer to read print versions.

In operating as lending libraries, agencies and libraries which produce materials in alternate formats for blind persons and persons with disabilities operate substantially like any other public library. In fact, at the present time, they collectively purchase and, thereby, pay copyright on more print copies of works than the average Canadian public library. In a sophisticated recording lending library for the blind, two texts must be purchased for the original recording of one. One text is used for the reader making the recording and the other text is used for the monitoring of the reader making the recording, to minimize the possibilities of text errors on tape.

Therefore, to have a text recorded, a blind person or an agency will have paid a copyright fee on two texts. It is unfair to ask the agency or the blind person to pay an additional copyright fee for each recorded text, given that the publishers and the authors are not involved in the production of the audio text for the blind. Agencies for the blind can ensure that the audio text is used solely for the blind and other persons with disabilities by recording the material on four-track cassettes at a slower than normal speed (15/16 inches per second). Using these recording modifications, the recorded material can only be played on special machines adapted for the purpose, not generally sold to the public.

The availability of these recordings to blind persons and other persons with disabilities does not constitute a significant decrease in profit for Canadian publishers and Canadian authors. However, the availability of these recordings does constitute a significant advantage to blind persons and other persons with disabilities in terms of their access to print materials, at no cost to the publishers and no cost to the authors.

Payment of a per copy royalty over and above the first copy made forces the establishment of administrative and auditing mechanisms which will not be cost effective. It also opens the door to ongoing representation before the Copyright Board; and is inconsistent with sections of the Act which specifically permit individuals to make and authorize the making of copies of works under the fair dealing exception for purposes of research and private study.

A consentual approach to resolving these issues has been adopted in the United States. Specific language has been proposed to Congress by the American Association of Publishers and the National Federation of the Blind which represents over 50,000 members of the organized blind in the United States. This language has been published in the April 1996 Braille Monitor (copy enclosed), an official publication of the National Federation of the Blind. The National Federation of the Blind: Advocates for Equality which represents the organized blind in Canada and whose leadership is elected by the blind at the local and national levels, also supports this approach and the ideas in the proposed language to Congress. The CNIB, the largest agency serving the blind in Canada also endorses this consentual approach.

In its discussions with groups representing both the creators and producers of the works under consideration, we are told that the CNIB has been led to believe that they would not oppose the elimination of the single copy restriction in Section 32.

In order to ensure that the Act provides equitable access without copyright infringement to copies of literary, scientific, artistic, musical or dramatic works for blind persons or persons with disabilities who cannot read print; and to ensure that the Act meets the intent of the government, we propose the following modified version of Section 32. Proposed Levy on Recordable, Blank Audio Media

According to a News Release from the Government of Canada dated April 25, 1996, a levy on recordable, blank audio media such as cassettes and tapes, is proposed. The purpose of this levy is to remunerate creators for private copying of their musical works. While the NFB:AE supports the idea of remunerating creators for private copying of their musical works, it does not support the proposed levy on all manner of cassettes because blind people use cassettes for the purposes of reading and writing, to a very large extent. While the proportions of people who copy artistic works are probably comparable in the blind and sighted populations, it is certainly true that the proportion of blind people who use cassettes for storing and disseminating information is much larger in the blind population than in the sighted population. Typically, blind people do not purchase cassettes at agencies for the blind. They buy cassettes where cassettes are normally purchased by the sighted.

Using cassettes to take and disseminate notes already costs blind people much more than pen and paper does for the equivalent purpose for the sighted. Adding an extra tax on cassettes may benefit the composers of Canada, but over the long run, it adds a financial burden to the blind. At a 90 percent unemployment rate of the blind in this country, blind people cannot afford an extra tax involving simple activities of daily living such as reading and writing.

This tax would particularly affect the members of our population who have the least amount of money, seniors and students. Seniors depend on cassettes because, by and large, they are not taught Braille. Even the simple act of taking down telephone messages involves the medium of cassettes, for a large majority of blind seniors. Students depend heavily on cassettes for recording books which are not already available in Braille, on cassette or in digital text formats. For the blind, cassettes are as essential for daily living as the paper and pencil, the book, the magazine and the newspaper are for the sighted. For the blind, an additional tax on cassettes is like an additional tax on tapwater. Cassettes are that vital for the blind. Requiring the blind to purchase cassettes at agencies for the blind in order to avoid the levy, will necessitate that blind people frequent agencies for the blind on a regular basis. For most blind people, once training and rehabilitation is accomplished, the visit to an agency for the blind is a rare occurrence. Further, agencies for the blind have enough to do and enough to pay for as it is. Imposing an extra bureaucracy to deal with the levy on cassettes adds to the costs for the agency. There is no doubt that this cost will be passed on to the blind consumer.

We, in the National Federation of the Blind, do hope that the Government of Canada will take into account the way most blind people run their daily lives. We are against an imposition of an extra levy on cassettes. We propose that the levy be restricted to higher grade cassettes which are used for the purposes of recording music.

Recommended Changes

Blind Persons and Other Persons With Disabilities Reproduction in alternate format.

  1. It is not an infringement of copyright to copy material in Braille, audio or digital text which is exclusively for use by blind persons or persons with disabilities including literary, scientific, artistic, musical or dramatic works, other than cinematographic work. Limitation.

  2. Subsection (1) does not authorize the making of a large print book. Limitation.

  3. Subsection (1) does not apply where a copy or sound recording of the work is commercially available in a format that would accommodate the needs of blind persons or persons with disabilities. Destruction of intermediate copies.

  4. If a person must make an intermediate copy in order to make a copy or sound recording under subsection (1), the person must destroy the intermediate copy as soon as it is no longer needed. Royalties, etc.

  5. (Deleted: It is not an infringement of copyright for a person to make more than one copy or sound recording under Subsection (1) if the person has paid the royalties and complied with any terms and conditions fixed under this Act.) Use of copies.

  6. No person who makes a copy in Braille, audio or digital text under Subsection (1) may, without the express consent of the owner of the copyright, use copies of the Braille, audio or digital text for any purpose other than for which the making of the copies was authorized by this section.

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