http://www.patent.gov.uk/about/
consultations/visually_impaired/index.htm

The Library Association Copyright Alliance (LACA) is the main UK organisation dealing with copyright issues affecting librarians and information professionals and their users. LACA is an alliance of the following organisations some of which may already have responded in their own right: 

• Art Libraries Society of the UK and Ireland (ARLIS);
• Aslib: the Association for Information Management;
• British and Irish Association of Law Libraries (BIALL);
• The British Library;
• Educational Copyright Users Forum (ECUF);
• Institute of Information Scientists (IIS);
• International Association of Music Libraries (IAML UK);
• The Library Association (LA) (including representatives from workplace libraries in the health and commercial sectors);
• Royal National Institute for the Blind (RNIB);
• Society of Archivists;
• Society of Chief Librarians;
• Standing Conference on National and University Libraries (SCONUL).

General comments

LACA welcomes the opportunity to comment on this important topic. The term VIPs has been used throughout to describe visually impaired people or persons as defined in the consultation document.

LACA has long been aware of the covert discrimination under the Copyright, Designs and Patents Act against VIPs.  LACA therefore welcomed the inclusion of an exception for people with disabilities in the EU Copyright Directive and also welcomes this consultation.  We hope that a similar consideration will also be given to those with other disabilities.  We are pleased that the Government has wasted no time in the preparation of this consultation document. However, we feel that it is rather unsatisfactory offering unnecessarily complex solutions. We feel that the solution could be a lot simpler.

LACA is sympathetic to the needs of the owners of the rights in the material who are concerned that control of the exploitation of their works should not be undermined by having an exception for VIPs and to ensure that they will still be able to obtain a fair return on their investment. We acknowledge that this document has tried to take account of their concerns as well as the concerns of VIPs and those who have to copy or “adapt” the material for them to access and read. However, it is essential that commercial concerns do not cloud the main issue that VIPs must not be discriminated against. They have the same needs as sighted persons to access and read published and unpublished works. This must be the main objective.  All other copying considerations should only be addressed if a VIP is likely to be exploiting the rights of authors and other rights holders. The problems of control of unlawful copying are no different for sighted persons.  VIPs must be given the same opportunities in the first instance and then other issues can be addressed.

Views on existing licensing arrangements: 3.3

Much has been said on licensing as a solution. Licences or licensing schemes may be a solution for those at risk of copyright infringement by allowing copying of material under their control over and above what is permitted under the copyright exceptions. However, the fundamental need of VIPs is to be able to access (read or listen to) this material. If the lawfully acquired works have to be copied or converted into a format to enable this process, such copying or adapting should not be treated in the same way as a normal reproduction or adaptation and so should not be subject to a licence or payment. If such converted works are to be sold, let for hire or otherwise exploited by organisations doing the conversions, only then should a licence be necessary. Firstly, grant VIPs equitable status with sighted persons, then consider copyright exploitation issues.

Rights holders have usually given permission to convert their works when asked. This is only satisfactory if there is no time consideration. VIPs should not have to wait to read a work which has been lawfully obtained nor should they have to ask permission in the first place, nor pay a fee. In addition, licences, being contracts, can have burdensome terms and conditions as well as being costly in terms of administration. For a VIP wishing to “read” a work, obtaining a licence could be a disincentive and so part of the discrimination process.

Comments on existing exceptions: 4.4

The existing exceptions mainly benefit those who are sighted. There are no restrictions on reading for those who are sighted so those with sight are able to read what they like without restrictions from copyright laws. The exceptions cover copying limited amounts for certain purposes. This is not enough for a visually impaired person who requires to read the whole of the work in order to digest the contents. It is not appropriate therefore to rely on existing exceptions to cover their needs. They will always need to “copy” a work first into a different format before taking advantage of an exception. Unless certain exceptions are extended for the benefit of VIPs, they do not benefit and so are disadvantaged.

Acceptability of an exception as long as no licensing scheme is available: 5.5

We would agree that if a publisher has produced the work required in a suitable format for VIPs, and at a comparable price, then there is no need for the VIP to copy/convert to another format. The VIP could just purchase the work in the required format. However, if a VIP wished to listen to an audio-recording of a work and the only published version available was an abridged edition, then an exception should not prevent the VIP making, or having made for them, their own recording of the whole work if the abridged edition was not suitable.

If a licensing scheme existed, who is to say whether it is a suitable one or not? What is suitable for some larger organisations may not be suitable for smaller ones, or for individuals. If there was a scheme to assess the suitability of all licensing schemes the user whole user community would be a lot happier. It would be unsatisfactory to subject VIPs to the Copyright Tribunal if disputes over conditions arose.

Exception for making single copies for individuals: 5.7

See above. We believe there is a need to be able to copy/convert a work for a VIP under a separate exception despite licensing schemes being available. There needs to be a definition of lawfully obtained which would not disadvantage a VIP using the facility of a library for instance. The work would be lawfully obtained by the library in this case and not the VIP.

Definition of visual impairment: 6.3

The definition should be taken from the Disability Discrimination Act.

Conditions and limitations for exceptions unless licensed. 7.2

In general, there could be restrictions on dealing with the work e.g. selling or letting for hire (other than specified in a licensing scheme), in order to allay fears of rights holders. Specifying lots of terms and conditions will only confuse and defeat the objective of trying to remove the disadvantage of the disability. VIPs should not be given more conditions than already exist.

(a)     An exception should apply to the reproduction right and distribution right. It is not necessary to include adaptation right in the list as what VIPs want is to be able to copy/convert rather than adapt in its copyright sense. They will also need to be able to communicate to the public on closed networks.

(b)    We disagree. Why should the exception be limited to print?

(c)     Agree, they should be able to copy all works both print and digital.

(d)    We cannot see that this should be a problem. The intention of the conversion is likely to be for enhancing the ability of the VIPs to be able to access and read rather than making it a “superior” product. The moral right of integrity is hardly likely to be infringed by enhancement.

(e)     This is good practice anyway.

(f)      We disagree that limiting it to published works is necessary. What about letters or unpublished material held in local history collections?

(g)     This applies to copying by anybody of works obtained from the Internet.

(h)     We think we agree!

(i)       This is not justified. The profit motive test should not be applied here. There are VIPs in the for profit sector too and who will need to convert or have converted for them material which is not available in the format they require. Provided the original work has been lawfully obtained then they should not be treated any differently.

(j)      Agree.

(k)    No profit should be made from conversion so agree that charges should be limited to cost recovery.

(l)       We feel this is justified but may be too difficult.

Conditions for one-to-one exceptions: 7.4

As stated in previous section, having loads of terms and conditions is not helpful. As long as the work copied is not exploited then that is all that should be said.

(a)    Agree.

(b)   Unnecessary.

(c)    Agree. This would be unjustified.

(d)   Agree.

(e)    This would not be appropriate or justified. For example, a VIP in a commercial organisation who has lawfully obtained a document should be able to convert or have converted for them material which is not available in the format they require and they should not have to go elsewhere for conversion. If conversion could take place in-house then it should not be prevented. Such documents may also be commercially sensitive.

Related issues: 9.1

The Government should be able to intervene if a publisher proves implacable, provided of course, that the requirements are genuine and fall under an exception or have been agreed voluntarily between publishers and VIP organisations.

Draft regulatory impact assessment

We consider that an exception for VIPs is necessary and overdue. Existing exceptions are not enough and voluntary agreements and guidelines between publishers and VIP organisations, although welcome, do not cover all VIP needs.

Sandy Norman
Secretary to LACA 

11 May 2001