Disability access provisions were recently changed and simplified to ensure more equitable access to copyright material. There are now two free exceptions: fair dealing for the purpose of access by persons with a disability, and use of copyright material by organisations assisting persons with a disability.
What can be done with copyright material?
The provisions are designed to be flexible to ensure copyright material can be converted into the most accessible format(s) available and with appropriate features.
A person can make any changes to the format and add features to help a person use the material. For example, scanning a book for use with assistive technology, making adjustments to the size and colour of graphs, tables or text, converting books into easy English, and providing audio descriptions.
Fair dealing for the purpose of access by persons with a disability
Under the new provision, a person with a disability, or a person acting on their behalf, can make a copy or upload/download a copy of copyright material if it is for the purpose of providing an accessible version to a person with a disability and the dealing is fair.
Who is a person with a disability?
A person with a disability is anyone who suffers from a disability that causes them difficulty in reading, viewing, hearing or comprehending copyright material in a particular form. In practice, this includes anyone with a disability as defined in the Disability Discrimination Act 1992.
When is the dealing fair?
The dealing must be “fair” to avoid infringing copyright in the material. The new provision sets four factors that must be balanced against the owner’s right to exploit their material: (i)The purpose and character of the dealing: This will be satisfied if the use is to assist a person with a disability to enjoy the copyright material.
(ii) The nature of the copyright material: Consider whether the material is in print and available and whether it is published or unpublished.
(iii) The effect of the dealing upon the potential market for, or value of, the material: Does the proposed use unreasonably interfere with the copyright owner’s exploitation of the material? If it does, the market harm it causes must be substantial for it to be considered unfair. If the material is commercially available, the other factors become more important in assessing fairness.
(iv) The amount and substantiality of the part taken compared to the whole material (if only part of the material has been copied): Consider how much of the original material has been taken. The more that is taken the more likely it is to be unfair. However, a copy of the whole copyright material may be required by the person where the material is not available in the format required or with the necessary accessibility features.
Use of copyright material by organisations assisting persons with a disability
This exception allows organisations to make accessible format copies for the sole purpose of assisting a person with a disability if the material is not commercially available in the format required.
When is material commercially available?
Copyright material is commercially available if it is can be obtained within a reasonable time at an ordinary commercial price. This requires making a reasonable search of authoritative sources.
Organisations are required to purchase an accessible copy if it is commercially available in a format suitable for assisting the person with their disability.
Can an access control technological protection measure be circumvented to make the copies?
No. Not at this stage. For example, a commercially released DVD containing an eBook cannot be “ripped” to copy part of the eBook to make an accessible copy. In September 2017, the Department of Communications and the Arts released an exposure draft of changes to the copyright regulations under which the University will be permitted to circumvent an access control technological protection measure to make copies under the disability access provisions. Once the government has considered submissions on the proposed changes, it will decide whether to create an exception for such copies. An update will be provided.