Intellectual Property Office - Disability Exceptions

Intellectual Property Office - Disability Exceptions

Response from The Communication Trust

The Communication Trust is a coalition of nearly 50 leading voluntary sector and community-based organisations with expertise in speech, language and communication. We support the children’s workforce and commissioners to meet the speech, language and communication needs of all children and young people. We do this by raising awareness, influencing policy, promoting best practice among the children’s workforce and commissioning work from our members.In 2011 the Trust ran the Hello campaign (national year of communication) in partnership with Jean Gross in her role as the Government’s Communication Champion for children.The Trust works extensively with partners including the Royal College of Speech and Language Therapists (RCSLT), Achievement for All, Council for Disabled Children, Early Support Programme and specialists across early years, schools and youth justice. The Trust is a partner of the Department for Education and was set up in 2007 by children's charities Afasic and I CAN, with BT and Council for Disabled Children.

Overall The Trust believes the changes in the legislation should be in keeping with overall government equality policy and legislation for adults and for children and not only for children or adults with specific impairments. We are therefore, strongly supportive of the widening of the exemptions in current provisions to encompass all disabled people and their access to all forms of copyright work.

We have specific comments on the suggested clauses in the legislation.

Section 31a – disabled persons making copies of copyright works for personal use

Subsection 1.a

The recommendations provided for individuals when making copies for their own use require that they will have lawful possession or use of a copy of the work. Therefore for many disabled children and young people it may be another person (a parent, guardian, colleague, friendetc) who will possess or use the lawful original copy and not the person with the disability themselves. For example:

• A parent has a copy of ‘The Hungry Caterpillar’ and produces an accessible version using symbols or signs for their disabled child.
• An adult has a copy of ‘The Hungry Caterpillar’ and produces an accessible version using symbols or signs for someone else’s disabled child and they gift the accessible copy to that child.

It is important to ensure that the legislation covers such situations where the disabled person does not lawfully possess the original, but does benefit from it as a disabled child may always require the support and action of another person to access the work. Therefore the exemption would need to cover that person’s use of the work even if they themselves would not have need of an accessible version.

It is also important to ensure that lawful use covers temporary use such as borrowing from a library –physically or online.

Subsection 1.b

The definition of the term ‘disability’ (‘by reason of physical or mental impairment’) should fall in line with other government departments and we would recommend using the same definition as defined in the Equality Act 2010.

Subsection 1.c

The paragraph refers to copies of the work not being available on ‘reasonable terms’. Examples should be given to ensure clarity of what ‘reasonable terms’ means.

The paragraph also refers to copies of the work being available to allow the ‘same level of access to the work as someone who does not have the impairment’. The phrase ‘same level of access’ should be amended to ‘similar level of access’ in order to cover the varying needs and abilities of the individuals for whom the copy is made.

Subsection 3

The Communication Trust recommends the production of statutory guidance to accompany this legislation. This guidance should include examples from the speech, language and communication voluntary sector- which we can assist in gathering and collating. Other such examples include:

• In the case of a literary work, producing a version using simplified text and symbols
• In the case of a literary work, producing a version using simplified text and signs and making a recording of the performance
• In the case of a literary work, reproducing the work on a voice output communication aid or other digital equipment
• In the case of a literary work, performing the work using signs and making a recording of the performance
• In the case of an audio-visual work, producing a version using simplified language and signs and making a recording of the performance
• In the case of an audio-visual work, producing a version using simplified language and symbols
• In the case of an audio-visual work, performing the work using signs and/or symbols and making a recording of the performance

Subsection 5

Given that another person will be the one who will lawfully possess or use the copy as subsection 1.a above, it is therefore important to ensure that this person will legally be able to transfer the accessible copy to the disabled person under the terms of the Act.

This scenario should cover any individual making an accessible copy and providing it to a disabled person, regardless of their relationship (i.e. friend, teacher etc).

It is commonplace for people to use social networking and the internet to share experiences and information. It is important that accessible copies provided on such media are covered by the legislation. For example:

• A person may record a signed song and post it on Facebook as a gift for a person with a disability.
• A person may record a signed performance of a song and post it on You Tube.
• A person may reproduce lyrics or text with symbols or supporting images and post this accessible copy on their Facebook site.

Due to the nature of these and other sites the accessible copy will be available to others without a disability to view. Such situations should be covered by the legislation.

Section 31b- making accessible copies for disabled persons generally

Subsection 1

The recommendations apply to 'an educational establishment or a body not conducted for profit'. It is important to broaden this group to include all those providing a service to disabled people, for example early years, health, social care, justice settings, together with other agencies and bodies. Some settings providing services for people with disabilities are privately funded but nevertheless provide statutory services under commission (for example academies, privately owned nurseries, adult centres, residential homes etc), and all such organisations should be included also.

Subsection 1.b

Many settings employ alternative and augmentative forms of communication (such as signs, symbols etc) as standard for all users of the service, regardless of there being a specific individual with a disability or need. This is also recommended best practice and in line with education inclusion policies, to encourage access to education and information, as well as language and communication, understanding and expression.There is a difference between accessibility and inclusion. Provision must therefore be made for services and settings to be covered when they make accessible copies available for use in inclusive settings. The legislation as currently drafted allows for “reactive” provision of accessible copies but not the standardised creation of accessible copies for inclusive involvement of all potential users of a service, in keeping with equality policy and legislation.

Subsection 7

This section allows for copies to be made only for educational purposes if they are made by an educational establishment. It should be clear that organisations and establishments making accessible copies will come from a range of sectors, for example health, social care, justice, and not just from educational establishments. It should also be clear that educational establishments will want to make accessible copies for a number of purposes, not just for educational reasons. For example:

• A college may need to make an accessible copy to illustrate to a potential parent and child the services and activities at the school.
• A school may need to make an accessible copyfor a parent with disability.
• A school may need to make an accessible copy that is not educational but informational.

Subsection 8.b and Subsection 9

It is important to define what is meant by ‘reasonable notice’ and ‘reasonable time’ such that a time frame or other guide is given.

Subsection 10b

The recommendations suggest that copyright is infringed where the copy is given to a person who does not have a disability and/or who does not intend to give it to someone with a disability. Many organisations and establishments use the internet and social media etc to share knowledge, skills and experiences with others. Under the recommendations, if you make something accessible on your public access website and the copy is accessed by someone who doesn't need it you would be infringing copyright. The legislation needs to make positive allowance for such situations, for example:

• An organisation produces an accessible copy for those with a disability and makes it freely available on the internet to its beneficiaries. In so doing the accessible copy is open to the public and can be accessed and used by those without a disability.
• An organisation provides a repository of accessible materials and makes them available on the internet for sale.
• An organisation makes all content accessible as standard on their website.

We hope the information and suggestions we’ve set out in this response are clear and will help the technical review process work to effectively widen the exemptions in current provisions to encompass all disabled people and their access to all forms of copyright work.

Thank you for taking the time to consider this response. We would be happy to discuss anything covered here in more detail. Please don’t hesitate to get in touch with me at The Trust directly either by email or phone- / 0207 843 2526 if there is anything you wish to discuss further or talk to us in more detail about.

Yours sincerely,

Anne Fox

Director

The Communication Trust

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