Legal rights to accessible publications
Making materials accessible for disabled users
The Copyright, Patents & Designs Act 1988 (as amended by The Copyright and Rights in Performance (Disability) Regulation 2014) provides that:-
If an authorised body has lawful possession of a copy of the whole or part of a published work, the body may, without infringing copyright, make and supply accessible copies of the work for the personal use of disabled persons. s31B(1)
There is no restriction on when the copies can be made but the following conditions must be met:
Copies must be made only for the personal use of disabled persons who need the accessible version to enjoy the work to the same degree as someone without the particular impairment.
The authorised body must have lawful possession or lawful use of the work and must continue to have such use as long as the accessible copies are held.
An accessible copy must not already be commercially available.
What is the definition of a disabled person?
The definition of a disability under the CPDA is different to the definition under the Equality Act 2010. Under CPDA, the definition for the purposes of above is as follows:-
s31 –
(2) “Disabled person” means a person who has a physical or mental impairment which prevents the person from enjoying a copyright work to the same degree as a person who does not have that impairment, and “disability” is to be construed accordingly.
(3)But a person is not to be regarded as disabled by reason only of an impairment of visual function which can be improved, by the use of corrective lenses, to a level that is normally acceptable for reading without a special level or kind of light.
Providing accessible formats to individuals who do not meet the requirements of the CPDA, or in a manner which otherwise breaches the terms of the relevant copyright licence, would constitute a copyright infringement for which the College would potentially be liable.
Opinion provided by legal adviser August 2017:
To make an assessment of eligibility we should consider these questions:-
i) does the student have a physical or mental impairment? If the answer is ‘no’; they cannot be supplied with the accessible format. If the answer is ‘yes’, move on to consider the question below.
ii) does that impairment prevent them from enjoying the copyright work to the same degree as a person who does not have that impairment?
Only if the answer to the two questions above is ‘yes’ may the person be provided with the accessible format – and even then, any changes to the work should only be made to the extent necessary to overcome the problem suffered by the disabled person.
In my opinion it would not usually be unreasonable to ask the person for appropriate evidence of the impairment where this is required; this is because i) there are prescribed circumstances in which we are able legally permitted to provide accessible formats; ii) there are associated record-keeping requirements under the CPDA.
If a student requests accessible formats because they ‘have difficulty’ carrying books, for the purposes of the CPDA you would first need to determine whether that difficulty was attributable to a physical or mental impairment. Experiencing a difficulty is not the same as having a physical or mental impairment. Also, on my interpretation of the legislation, where the student has a disability in accordance with the definition set out in the CPDA, it must be the impairment that prevents the enjoyment of the work, rather than any other unrelated factor.