Any creative work less than 70 years old is likely to be covered by copyright. The copyright may lie with the author, an agent, a publisher or, if the author has died, with his estate.
Copyright laws lay down that you cannot do anything with such works without the rights holder's permission.
You cannot translate them, turn them into a film, or put them into an alternative format: braille, audio, large print; nor onto another carrier such as disk.
The law in ten of the 15 member states of the European Union, including France and the UK, makes no provision for the needs of visually impaired people. Hence, explicit permission is needed each time an item is put into an alternative format.
This situation can sometimes be alleviated by comprehensive agreements with individual publishers, but these still depend ultimately on the rights holders' good will, not on any rights accorded to blind people.
Faced with this situation, we have the choice of
- accepting this situation, accepting all the delays and refusals which it will continue to create, or
- ignoring the law, exercising our own control over distribution and hoping that nobody minds; or
- trying to change the law. This seems the most sensible solution.
Any changes in national law will have to take account of the draft European Union Directive on copyright (Com 97/628). This seeks to harmonise certain aspects of copyright law in the Information Society. It has been hotly contested and is very controversial, though our needs have not been at the centre of the storm. Members of the European Parliament complain that they are more heavily lobbied on this than on any other issue. On the one hand, the music and film industries strive for tight control over all intellectual property. On the other, libraries, consumer groups, the consumer electronics industry and indeed organisations of disabled people seek to strike a fair balance for the "consumer". The European Blind Union has been striving to ensure that the voice of blind and partially sighted readers is heard.
As currently formulated, the directive grants exclusive rights to the owners of intellectual property in respect of reproduction, communication to the public and distribution. It then proposes certain optional exceptions, covering activities such as private study, use in libraries and use by people with a disability which affects their ability to read.
It should be stressed that this exception is left purely optional. It should also be remembered that it consists of only two sentences, and will need to be fleshed out by the national legislation in each country which chooses to implement it.
The draft directive also deals with the question of "technical blocks", and this is of great concern to us. Owners of intellectual property want to be able to attach technical blocks to digital versions of their material to prevent unauthorised copying. The directive demands that member states make it illegal to manufacture or sell equipment designed to circumvent such blocks, but it does nothing to guarantee access by those with legitimate cause to bypass the blocks. We must find solutions to this.
If we are to campaign for change, we must decide exactly what it is we want.
If we are to fight for our rights, we will also need to accept our responsibilities. Rights holders are afraid that they will lose control of electronic copies. We have to have systems in place to ensure that copies we create and distribute under any legal dispensation are given only to those with a visual impairment or other reading-related disability. We do not want to be confined to "special" formats, but we do need to make reasonable efforts to ensure controlled circulation.
The Federation of European Publishers (Federation des Editeurs Europeens) and its counterparts in some countries have often suggested that licensing is a better option than legislation. Such solutions would enable them to keep control of what happens to their intellectual property, and would not grant any fundamental rights to us. Licences might sometimes work smoothly, but they can create their own bureaucracy. There is no guarantee that they will not involve charges, in the future if not now, and the licensing agencies are usually not empowered to grant licences on behalf of rights holders based outside the country in question.
We should also decide whether we want to have books "free of charge". Traditionally, we have paid for one or two print originals from which to create a braille or audio master, but have then made further copies where necessary without any additional payment to the rights holder. It can be argued that this is perfectly justified, since alternative formats are produced on a non-profit basis and agencies serving visually impaired people have to spend considerable sums in producing alternative formats. It will certainly never be right to pay for permission to read, but would it be reasonable to pay rights holders in accordance with the number of copies produced?
The draft European directive was published in December 1997. The European Parliament adopted its First Opinion in February, 1999, and the Commission published a revised text in May 1999. The Council of Ministers has yet to pronounce. It will in due course adopt a Common Position, after which the text will go back to the Parliament again. Parliament and Council have to agree on the final text before the directive can be adopted. Member states will then have a further year in which to implement it in their national legislation.
The next few months will be crucial. Under the current Portuguese presidency, the Council of Ministers may well reach a common position. However, it could be the second half of the year 2000 before Parliament responds. This means that the vital final negotiations and so-called "conciliation" process could take place during the French presidency from July to December 2000.
France has the reputation of being a copyright hard liner, opposed to virtually any exceptions to exclusive rights. I hope that today's audience will use their influence with French politicians to ensure a satisfactory outcome.
Unfortunately, many politicians believe that the needs of disabled people have already been dealt with. They do not understand that the existence of an optional clause is far from a guarantee of the right to read. Nor do they comprehend the relevance of technological measures to our needs.
It is true that later versions of the text have a stronger recital relating to the rights of those with a print disability. It is also true that reference has been extended from the visually and hearing impaired to cover all those with a disability that affects their ability to read. However, there are absolutely no guarantees anywhere in the draft directive that would ensure that we had the freedom to access everything that others can access.
It is this very issue of exceptions that has most pre-occupied the civil servants on the Council of Ministers Expert Working Group. Some want an exhaustive list of exceptions, some do not. Some want a long list, some a very short one. Each has their pet exception. In this context, those who proclaim themselves sympathetic to our case have felt unable to plead for one exception to be mandatory for fear of unleashing a whole list of similar demands from other constituencies. To my mind, the only viable solution is to take the question of access by print disabled people out of the "exceptions" battlefield altogether. Our case is unique. We are not talking about copying, but about modifying to allow access. If I were to be able to re-write the directive I would create a separate article which talked not of exceptions but of "guaranteed freedom" which nobody could thwart.
This approach could also be the foundation of a solution to the issue of technological blocks. If the law stated that rights holders could not stand in the way of access by disabled people, they could then be obliged to make "unblocked" copies available to bona fide individuals or organisations, or to deposit unblocked copies with some central registry.
That said, the best solution would always be for rights holders themselves to make alternative format copies of their works available, at the same price and under the same terms as "standard" copies. Were that happy day ever to come, the issue of copyright would melt away.
As I have mentioned above, ten of the fifteen member states have no copyright legislation for the benefit of visually impaired people. Legislation does, however, exist in the Scandinavian countries, in Spain and in Portugal. There is also legislation of varying value in Canada, the United States, Australia and New Zealand.
In 1997 RNIB published a survey of copyright law in the European Union and in five major English-speaking countries, available on RNIB's web site at www.rnib.org.uk/wesupply/publicat/copyr.htm I have just completed an update to this survey which should be distributed and posted on RNIB's web site in the next month or so. It focuses more narrowly on those countries that have legislation and on its application to electronic media. I summarise below the findings in respect of production and distribution of material for visually impaired people on disk and over the Internet.
Production and Distribution on Disk
The majority of countries surveyed did produce and distribute material to clients on disk, within the terms of the copyright legislation which also permitted the production of braille, audio and (sometimes) large print without permission. The exceptions to this are Sweden and Australia, where individual permission or licensing is still required.
Most of the material produced in the other countries is in fact tagged, marked or somehow presented in a format or with a browser which facilitates navigation by visually impaired users, and can thus be viewed as a "special" format. Access is often restricted to registered users through some form of password or encryption, and copyright statements may appear at the beginning of the text. In New Zealand a written undertaking on the part of the end-user is considered adequate.
However, there are as many different practices as there were respondents. For sample, in Spain, ONCE feels able to produce on disk only material pre-formatted for braille that would therefore be of no value to non-braille readers. On the other hand, its Iberian neighbour Portugal appears to act at the other end of the spectrum, using no special formatting and taking no explicit measures to prevent misuse.
Distribution over the Internet
A similar picture emerges in relation to distribution via the Internet. It is generally felt to be permitted under legislation in most of the countries surveyed, but not in Sweden or Australia. Despite this, TPB in Sweden has felt able to press ahead with a service for deafblind users, distributing material already prepared for braille access. This is because the production and distribution of braille is itself permitted under Swedish law.
Because US law strongly emphasises that non-infringement activities can relate only to "special" or closed formats, the only initiative there involving Internet distribution to end-users is limited to material pre-formatted for braille (Web-Braille). Spain feels similarly restricted to material pre-formatted for braille in the service it is developing.
Respondents specified overall a higher level of protective measures to ensure that material made available in this way was not available to people not registered as bona fide visually impaired individuals. Bulletin boards, passwords and other devices were used. Again, a written undertaking suffices in New Zealand. Only Portugal reported no particular protective measures.
Copyright laws around the World still fall far short of the legitimate requirements of blind and partially sighted people to read the same material as everyone else, at the same time and at no additional cost.
David Mann, 20th January, 2000