Best Practices
Australia
The Vision Australia Information and Library Service (VAILS) produces accessible copies in audio and Braille under a statutory licence that is established by Australian copyright law. Most of VAILS’ clients use audio material from a collection that includes cassettes and CDs from commercial suppliers, audio books in DAISY format or on cassette that have been produced by other print disability organisations in both Australia and overseas, and audio books in DAISY format that have been produced by VAILS. VAILS is not permitted under the statutory licence to make audio copies of a title that is already available commercially in that form. Also, the provision in Australian copyright law does not apply to musical works, so if a Braille copy of these is needed, it is only possible to make this by seeking permission from the music publisher.
In addition VAILS has encountered the same sort of problems that many other organisations seeking to assist visually impaired people have encountered when trying to develop
co-operative collection policies involving the exchange of material in accessible formats across borders. Australian copyright law does not clearly deal with such international exchanges. Often, in order to obtain material from an overseas organization, VAILS must obtain permission from the copyright holder. As an example, recently an exchange of Braille files between print disability organizations based in Australia and the UK took nearly six months to achieve. This was due to lack of response from the copyright holder despite repeated approaches to seek permission.
The Australian Copyright Act is currently being revised to deal with several issues, including certain concerns with exceptions to rights. Consultation exercises have covered, amongst other things, whether or not additional provision should be made for fair use of a copyright work, and if so, what form this should take. Not surprisingly, Vision Australia and other organizations representing disabled people have lobbied for additional provision that would overcome at least some of the problems they have encountered with the limitations in the current legislation.
In September 2006, the Attorney General in Australia released draft legislation to be introduced to Parliament, including proposals on copyright exceptions1. This proposal includes a new exception to copyright covering four specific types of use, one of which is use by or for a person with a disability. The use would enable a disabled person to obtain a reproduction or copy of the work or other subject matter in another form, or with a feature, that reduces the difficulty the person had reading, viewing or hearing the work in a particular form. Activity that might have a commercial advantage is, though, specifically ruled out. Otherwise, the scope of the exception is left to the courts to interpret in a flexible way as any activity under the exception must meet a test that is very similar to the Berne 3-step test.
This new exception would not replace the existing exceptions in Australian law enabling certain activity for the benefit of disabled people. Where activity falls within the scope of what they permit, including where there is a requirement to pay remuneration to the copyright owner, then the activity continues to be covered by that exception and remuneration continues to be payable. The new exception, rather, complements existing provision covering the making of accessible copies for visually impaired people, perhaps dealing with some of the difficulties identified above that have been encountered by VAILS. There is at this juncture no guarantee that the new copyright legislation will be ratified, but, assuming it passes into law in due course, it may, though require interpretation by the courts before its full utility can be appreciated.
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1 An exposure draft of the Copyright Amendment Bill 2006 dealing with exceptions and other digital agenda review measures was published in September 2006.
