-IPO Consultation on Copyright

Response from Share the Vision

1. Introduction and background

1.1. Share the Vision (STV) is pleased to be invited to respond to the IPO’s consultation on copyright.

1.2. STV is a UK wide partnership of the main bodies for publicly funded libraries and the main voluntary sector organisations that produce and lend reading materials in accessible formats for print disabled people. STV’s objective is to improve access to information and reading materials for print disabled people via cooperative working within and between the sectors. In so doing, it is not only concerned with the internal workings of its partnership organisations but also the wider environmental factors that prevent print disabled people having the same access to content that sighted people take for granted. There is no doubt that copyright is one of those factors and that it is appropriate for STV to respond to this consultation.

1.3. STV appreciates that, given the importance of the creative industries to our economy and its future prospects, the primary motive for the Government’s proposals for changes in copyright law is to encourage economic growth. We support this objective in the national interest. However, we also appreciate that the Government is concerned to address issues of fairness and social impact and is committed to its international obligations regarding the rights of disabled people.

1.4. Given the lack of evidence on the economic costs and benefits of the proposed changes to copyright law that is the specific focus of the 114 questions posed in the consultation paper, our response concentrates for the main part on issues of social fairness. Therefore, we intend to avail ourselves of the invitation in paragraph 7.22 of the consultation paper “to comment on the case for or against copyright exceptions in general.”

1.5. However, we believe it is important to commence our response by emphasising that research conducted by the Library and Information Statistics Unit at LoughboroughUniversity in 2011 found that only 7% of the output of UK publishers between 2006 and 2010 eventually became available in an alternative format accessible to print disabled people[reference 1]. This was an improvement on the earlier research in 2004[reference 2] which found only 4.4% of 1999 to 2003 publications in alternative formats; but the fact is that 93% of UK publications were not accessible to print disabled people in 2011. This is obviously a major problem for the estimated 1 in 8 of the UK population who cannot read standard print for reasons of sight loss, dyslexia or the inability to hold a book or turn a page [reference 3]. However, it also represents a lost economic opportunity for publishers. The reasons for this paucity of coverage can be briefly summarised as follows:

  • Many mainstream publishers have not yet recognised the opportunities to increase their market, especially the opportunities presented by the digital age. Most commercial production of alternative formats is carried out by a small number of specialist companies.
  • The Equality Act 2010, which subsumed the duties of the earlier Disability Discrimination Acts, requires the provision of accessible goods and services but not the accessibility of the goods themselves, in this case books and other publications.
  • Voluntary sector organisations, such as STV members RNIB, Calibre Audio Library and ClearVision, attempt to make up as much of the shortfall as possible, but have limited funds to do so.
  • Copyright law is not up to date and, where it does assist, exceptions are overridden by DRM systems and contracts which prevent legitimate use of digital materials.

1.6. Whilst we wish to comment on the specific proposals for changes to the disability exception providedby the Copyright (Visually Impaired Persons) Act 2002, we also wish to briefly comment on other proposed changes which are relevant to individuals and libraries. We believe that they offer realistic prospects to enhance copyright law for the benefit of British citizens, including disabled citizens, without detriment to the interests of copyright holders or the economic interests of the nation. Indeed, we believe that “the case for change” which is set out throughout the document to explain and justify the Government’s position and the rationale for each proposed change makes a compelling justification for this much needed balancing of interests which is ultimately in the interest of all parties.

2. Non-disability specific proposals

2.1. With regard to these non-disability specific proposalsour brief comments are as follows:

2.2. We very much support the long needed proposal to resolve the problem of orphan works so that libraries and archives can better ensure the preservation of our national cultural heritage. We believe that the proposedDigital Copyright Exchange seems to be the logical, most effectiveand most efficient means of checking the status of the majority of works concerned.

2.3. We also very much support the provision of anexception for private copying. Both the HargreavesReview and this consultation paper have eloquentlymade the case for change. In this case everybody’sanecdotal evidence is that the vast majority of one’sacquaintances do not know the law and when youinform them that what they regard as normal,reasonable and realistic behaviour with regard totheir property is illegal, they disbelieve you or regard the lawwith contempt. For printdisabled people there is the added frustration that e-books provide an opportunity to access contentnot previously available but the TPM’sapplied by some publishers prevent access via assistive devices and software programmes. The consultation paper refers in paragraph 7.31 to their rightof appeal to the Secretary of State but we have no knowledge of any person exercising this right or how long it would take to obtain an accessible copy via thismethod. Therefore we support a change which permitsprint disabled people to change the format of a workin their legal possession for their private, non-commercialuse. We also agree with the statement in paragraph7.28 that “any private copying exception would need tobe technology neutral and apply to every type ofcopyright work.” Given the rate and breadth of innovation in digital technology it is logical to make changes to copyright law which are future proof and“technology neutral.”

2.4. We support the proposal to extend the exception for preservation by libraries to cover all formats and to include museums and galleries. It is in the overall national interest, including economic interest,to preserve as much of our national cultural heritageas possible.

2.5. We also support the proposal to extend the existingexception for research and private study (fair dealing)to cover every type of copyright work. This is entirelylogical in a multi-media age.

2.6. We also support the proposal to provide an exception for text and data mining for non-commercial research. The Hargreaves Review made the case for this exception most persuasively with reference to findinga cure for malaria. As much scientific, technical and medical periodical publishing is based on publiclyfunded research and libraries are charged considerableamounts to acquire these publications, it could be termeda fair deal. In any event it is likely that the growth of support for and use of open access publishing will increase the amount of research findings open to textand data mining and it would be preferable for as much as possible to be available as soon as possible. Wesupport the proposal on social and humanitariangrounds.

2.7. We support the proposal to expand the materials covered for educational purposes; to permit the use of ICT and to expand the amount permissible to fairdealing levels. We are pleased that paragraph 7.133recognises the considerable potential of distance learning to meet the needs of disabled students and to assist their inclusion in mainstream formal education.

3. Copyright exceptions for people with disabilities

3.1. We are grateful to the IPO and wish to acknowledge that it has fulfilled its longstanding commitment to address exceptions for disabled people at an opportune time. We believe that the consultation paper’s case for change to the current arrangements sets out its proposals logically, succinctly and accurately.

3.2. We are pleased that paragraph 7.163 indicates the Government’s support for the WIPO negotiations to encourage wider international provision of an exception and the facilitation of the transfer of accessible works across borders. We believe that the UK can contribute to its international aid policy of assisting the education of some of the poorest people in the world by facilitating the provision of accessible formats for print disabled people in developing countries via this low cost but very cost effective method. However, we are aware that the EC was less supportive of these measures at the last session of the WIPO Standing Committee on Copyright and Related Rights in November/December 2011 so we agree with the proposal that the UK Government should make it clear that all works produced under the exception in the UK can be exported to countries outside the EU, whether or not the intended recipient country accepts their importation.

3.4. Question 90. How should the current disability exceptions be amended so that more people are able to benefit from them? Can you provide evidence of the costs and benefits of doing this?

We believe that the UK should take advantage of the provisions of the Copyright Directive and extend the exception to cover all disabilities. As the consultation paper acknowledges, this would assist the UK to comply with its obligations as a signatory to the UN Convention on the Rights of Persons with Disabilities and the implementation of the Equality Act 2010. We do not have any hard evidence of the costs of doing this but the benefit would be that it would remove an anomaly whereby print disabled people who are blind or partially sighted can be provided with an alternative format but other print disabled people, such as people with dyslexia, cannot. This would mean that around 1 in 8 of the UK population would have more access to content. By extending the exception to cover the needs of all people with a disability the law will be future proofed to cover new disabilities or technological solutions that may arise, however unlikely that may appear to be the case at this time.

3.5. Question 91. How should the disability exceptions be expanded so that they apply to more types of work? Is there a case for treating certain works differently to others? What would be the costs and benefits of amending the exceptions in this way?

It follows from our answer to question 90 that we believe that the exception should be expanded to cover all forms of works. Clearly, the right to apply audio description, sub-titles and captions to all relevant formats should be permitted. As different media converge in the digital age, it is illogical to specify access adaptations to separate formats as that would constrain potential future developments in access to cultural content. We do not know if there is any direct cost of making this change but there are immediate potential benefits for print disabled and deaf people and who knows what future benefits for people with other kinds of disability.

3.6. Question 92. What are the costs and benefits of the current licensing arrangements for the disability exceptions, and is there a case for amending or removing them?

STV does not know the costs of the current licensing arrangements but notes that the Impact Assessment for this proposed change indicates that there will be no loss to the rights holders but a potential total saving for 127 licensees of £80,100 per annum based on an average cost of £630 per organisation. RNIB has calculated its cost at £1100 per annum but, as it is by far the largest producer of accessible formats, this would tend to confirm that the average figure is of the right order. Obviously these organisations incur other costs and we would question the statement that “Costs that organisations making accessible works choose to take on will be compensated through sales.” It is the case that they make copies available for sale but the vast majority of their transactions with customers are loans, not sales. Accepting that there is a subscription charged for loans of some but not all formats, by some organisations but not by others, it is difficult to estimate the total financial investment made by these voluntary sector organisations in providing their lending and sales services, butfor example, approximately two thirds of the running costs of RNIB's Talking Book service is met by subscription income while one third (£1.6m) is subsidised by fundraised income.

3.7. Therefore it is safer to concentrate on the social benefits. It seems to us that the problem with a licence is that the licensor can remove it or alter its terms whereas an exception is a legal right provided by statute which sets out the entitlement of the beneficiary and cannot be altered by a third party. We acknowledge that the publishers and the Copyright Licensing Agency have operated in good faith and have been supportive of attempts to enhance the provision of accessible formats but we would prefer the removal of licences and the enactment of a broader statutory right along the lines preferred by the Government.

3.8. As the main problem is the failure of the market to provide accessible versions, it is possible that this approach will stimulate publishers to realise that by taking advantage of their new digital opportunities to provide publications that are easily accessible to all, there will be less demand to produce copies specially for print disabled people and demand for their products will increase. This would have the benefit of increasing their income, reducing the production costs of the voluntary sector organisations permitting them to invest in other services and increasing the total amount of accessible content. At present we are at the very start of this transition but it is likely to develop at an increasing rate to the benefit of all parties.

3.9. In the longer term an exception is more relevant than a licence as it should only be required to cover those exceptional items which are not provided digitally with inbuilt accessibility to the user's preferred means of output (Braille, Large Print, Giant Print, text-to-speech or whatever) via his/her preferred reading device.

4. Protecting copyright exceptions from override by contract

4.1. STV is delighted that the Hargreaves Review and this consultation paper have addressed this major problem for libraries and acknowledged that it can prevent legitimate access by visually impaired people.

4.2. Question 103. What are the advantages and disadvantages of allowing copyright exceptions to be overridden by contracts? Can you provide evidence of the costs or benefits of introducing a contract-override clause of the type described above?

The paper makes the case for preventing override by contract perfectly adequately and it is essential that libraries should have absolute certainty that a right conferred by an exception provided by statute cannot be overridden by contract law. A British Library analysis of 100 contracts offered to it found that only 2 contained provisions relating to the rights of visually impaired people [reference 4]. Why should any publisher have the right to determine that assistive technology cannot be used by a print disabled person to access digital content that their library has legally procured? From the point of view of print disabled students, this prevents them from taking advantage of remote access to content which the institution is able to make available to non-disabled students who are likely to have far less difficulties in visiting the library in person. This would certainly help libraries to meet their public equality duty to disabled students. Paragraph 7.250 notes that the current exception for disabled people permits a licence and if this is preserved then any licensing scheme would not be affected by the general clause to prevent override by contract. This reinforces our support for the abolition of licensing schemes for disabled people and our preference for an extended exception, which does not constrain but permits reasonable adjustments to be made so that disabled people can have fair and equal access to information and cultural content.

5. Conclusions

5.1. STV very much hopes that the Government will proceed with these proposed changes to copyright as we believe that they will provide an equitable balance between the interests of rights holders and users in the overall economic and social interests of the UK. This is particularly important in terms of seizing the opportunities of the digital age but there is no reason why digital storage and delivery should be different in terms of basic human rights and the rights which the law confers to all citizens. Digital technology should not be used to constrain those rights but rather to expand the opportunities available to both business and consumers of cultural content, especially disabled people for whom much content is now becoming accessible for the first time.

5.2.We have noted the comments of Pete Wishart MP in the Westminster Hall debate on copyright on 7 February and the role of the IPO [reference 5]. We trust that the Government and the IPO will not be easily persuaded to drop their proposals. We have also noted the press release issued by the Publishers Association on 10February [reference 6] in which they announce their support for the Digital Copyright Exchange, also supported by STV. They state that the DCE “would counteract the need for dangerous changes to copyright law proposed by government in a parallel consultation” and call for the consultation to be suspended in favour of “market based voluntary arrangements.” We do not believe that basic rights are better provided by licenses than by law. We would hope that the Publishers Association and other rights holders will concentrate on expanding their market by meeting the needs of those of the 10 million plus disabled people in the UK [reference 7] who have specific access requirements, rather than attempting to restrict their rights to equal access to content. That way everybody gains.