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Although the present paper has been put together by the author, it owes much to the writings and thoughts of various colleagues within or associated with RNIB. I am grateful to them all for their help and inspiration - conscious or otherwise!
Benevolence was often involved. Traditional and most current methods of production require the purchase of one or two print copies of a text in order to produce an alternative version. If, then, only one or two alternative format versions are produced, the rightsowner has already received just remuneration, and has no case for further payment. If, however, twenty or a hundred copies are produced, as might happen with popular authors, particularly on tape, then it could well be argued that the rightsowner has foregone their just income on most of those copies.
On the other hand, benevolence has also been evident on the part of the not-for-profit agencies. Large amounts of capital and revenue, often from charitable sources, have had to be invested in the production and distribution of braille, tape and so on, with material being lent or sold at highly subsidised prices to the end-user. The rightsowner has not been asked to subsidise these costs, which would surely outweigh any additional royalty due from the extra copies created. It could be contended that the question of additional costs of producing alternative formats is a social issue in which state funding is the appropriate mechanism, but there is a sound case to say that publishers should at least be obliged to collaborate and to erect no barriers, technical or administrative, to the production of formats they are not themselves able or willing to produce."
Traditionally, blind people have often accessed information by segregated means. This has been of some assistance in facilitating copyright concessions. Braille was, and often remains, a mystery to those who do not need to use it, and it has been rare for permission to produce braille to be refused. Administrative delays often persist, however.
Spoken word on tape was for long the preserve of visually impaired people, too. In some countries, agencies have felt it necessary to re-assure rightsowners by distributing material on closed formats, such as the "Library of Congress" 4-track half speed format predominant in the USA or the "Clarke and Smith" six-track long play system favoured until recently for leisure reading in the UK. These solutions have involved massive capital outlay and high running costs. Other countries have managed quite happily using conventional tape formats, surviving on goodwill and trust.
The creation of a commercial market in unabridged audio versions of creative writing has caused some problems for agencies working in the visual impairment field, while also offering opportunities for collaboration and pooling of resources. Scandinavian regimes have tackled this by legislating so that rightsowners cannot prevent audio copies of their works being made for visually impaired people, but are entitled to a fee of commercial proportions when such work is carried out.
The concept of "large print" only seems to date back over the past 30 or 40 years. Unlike Braille, large print publishing has generally been undertaken by commercial publishers, whose main market has been public libraries. They have operated at least to cover their costs and were rightly subject to the payment of copyright fees.
The above remarks apply primarily to complete books. The need to access shorter extracts has often been approached in a less formal way, applying the concept of "fair dealing", explicitly or implicitly. With large print in educational settings, licences have played a greater role.
Whatever the medium, alternative versions have been seen as copies, not mere re-formatting. Copyright regimes have taken into account only one set of rights. At the same time, voluntary agencies have failed to raise the question of disabled people's rights, have collaborated in the "concessions" game and have not faced up to the issue of multiple copies. The large cost of production has generally been borne by statutory or charitable funds, or a combination of both, with no contribution from publishers. The quantity of material available to visually impaired people has remained a minute proportion of that available to people without a print disability.
And then came electronics!
The electronic age does not mean that thought or creativity have changed, merely the means of conveying them. Hence, the rights of creators, and the rights of print disabled people, have not changed either. They simply need to be codified in a fresh light. However, as we have seen above, there have been precious few rights for disabled readers until recently, and in many countries there are still none. Hence we have to establish rights as well as to re-codify them. The potential advantages of the Information Society make this work all the more crucial. I examine below some of the situations in which electronic means of storage, processing and distribution can act to the benefit of visually impaired people, assuming copyright barriers are not erected.
Increasingly, it will be possible for agencies to download text from the Internet, or access it via publishers' disks, without purchasing print copies. Ways need to be established of ensuring that bona fide people and organisations have the right to such access, while not necessarily denying rightsowners the remuneration they would have received from the purchase of a print copy (or an electronic copy, if that is the way the work is being generally distributed.)
The use of PC's and relatively inexpensive peripherals has made braille production, in particular, potentially much less expensive and therefore open not only to the large welfare organisations but also to much smaller entities such as branch libraries or local voluntary groups. In the "permission" regime still prevailing in many countries, this will lead to copyright anarchy or administrative overload if copyright legislation is not improved.
Just as braille and large print publication is becoming increasingly electronic, so is audio production. The international Daisy consortium has established an international set of standards for recording and playing back audio files. Recordings made by the human voice can be digitised and rendered susceptible to annotation, indexation, search and retrieval. Within the next couple of years playback software will be available free of charge via the Internet and from participating libraries. Playback equipment will be on the market offering varying levels of complexity of access, and a growing amount of material will be distributed in this format. Significantly, it will be possible to play these files back over any equipment designed to play CD-ROM's. At its simplest, this is just another way of presenting material in an audio format, overcoming all the drawbacks of linear access to text on tape and escaping from obsolescent analogue technology. Thus, it appears to raise the same copyright implications as old-fashioned tape. Should access be controlled, via software or hardware, or (as the thrust of this paper would suggest) should Daisy-compliant material be freely available, with any rightsowner having been obliged by law to permit this, but being entitled to a fair return for the extra readers which result?
Alternative format material has always been modified in one way or another. The braille page layout will always differ from the print. Audio tapes have index tones added, or tables explained. With digitised text, a great deal of helpful indexing is possible. This may equate to a detailed index at the back of a print book, or may go beyond it. Copyright legislation needs to differentiate between alterations to the intrinsic nature of the text, over which the originator is entitled to retain control, and adaptations which are designed solely to facilitate access by a visually impaired reader, which should always be allowed.
The international nature of the Internet makes inter-library lending in alternative formats a reality. A file already formatted for the braille or large print production of a title can be sent over the Net to an agency or to an individual on the other side of the World (if, indeed, the World has sides). Similarly, the catalogues of libraries can be accessed, and national bibliographies such as the National Union Catalogue of Alternative Formats in the UK will be available to all. This should reduce the incidence of unnecessary duplication or situations where people fail to gain access to a text because they cannot know that it has already been produced in an alternative format elsewhere. However, this will not be of much benefit if copyright provision for visually impaired people has no international dimension.
It is fascinating to note that electronic media have been treated in a similar way to braille, although they are of much greater potential interest to people without a print disability. One might have expected Scandinavian regimes, which insist on adequate remuneration for rightsowners in the case of audio, to have done the same in the electronic sector. Much presumably depends on the extent to which there is perceived to be competition with a commercial market. Is it really plausible that the electronic publishing sector will remain smaller than the audio book market?
The European Union is currently considering a Proposal for a Directive to clarify copyright legislation. This is being approached very much in terms of creating an internal market and consistent legislation throughout the Community. Unfortunately, it opens up the prospect of just the opposite in respect of visually impaired people. As currently drafted, it allows member states to make exceptions in their own legislation for the benefit of visually and hearing impaired people, but does not oblige them to do so, let alone stipulate the form such exceptions should take. The very fact that the draft directive is phrased in terms of "exceptions" indicates that it has not approached this as a rights issue, but as a concession to the disadvantaged.
In Scandinavia, legislation has recently been amended (or, in the case of Sweden, is about to be amended) to extend to the electronic medium the coverage already afforded to braille. In Denmark, a new measure which took effect at the beginning of 1997 permits distribution on disk as well as via Internet. Copyright owners' permission is not required, and fees or royalties appear not to be due. Disks are not restricted to closed format. According to the Danish Library for the Blind (DBB): "At present, we use WP 4.2 for our e-texts. We insert a file referring to copyright restrictions at the beginning of each disk".
The Finnish legislation of 1995 permits reproduction "with the purpose of rendering [material] readable by visually impaired people". It is worded and interpreted so as to cover all formats. Thus braille, large print or disk copies of a published work can be made without asking permission of the copyright owners or paying a fee. Disk is viewed more like braille than like audio, since tape production in Finland is limited to prescribed agencies. Material can be distributed by "data nets" if the producer can make sure that only visually impaired people can access the material. The Finnish Library's position on this is: "the only way to ensure that the material will not get into the wrong hands is to distribute it using BBS-type distribution systems. During our pilot project we lent our books to those blind persons who have access to a certain mail-server. If you are using Internet you have a password for example to a ftp-machine."
In Norway, again, amendments to the law passed in 1995 mean that electronic copies can be made in the same way as braille, without any need for permission or fee, and not only by prescribed organisations.
It is hoped in Sweden that the Swedish Government will soon introduce legislation along the same lines as that in Denmark. The most recent estimate is that this may happen in June 1998.
The "non-infringement" legislation in the USA allows electronic formats as long as they are not readily accessible to the general public - and as long as they pose no threat to any commercial market. Password protection and encryption are used to provide this protection for disks. The Internet has not yet been used to provide a regular service to visually impaired readers, but Recordings for the Blind and Dyslexic (RFBD) envisage that it might be within two or three years, and again they would use password protection and encryption to limit access. The Canadian legislation does not specifically address the electronic world, but subsequent discussions with Canadian colleagues makes it apparent that electronic formats are included in its provisions, much as in the USA The New Zealand regime allows the use of disk and Internet, with no restriction on format, only on recipients, and of course legal insistence on the non-commercial nature of the activity.
In Australia, within the context of copyright permission, some publishers have agreed to their books being put on to disk for use by visually impaired people, but the Australian Copyright Agency Ltd has warned that, if electronic formats were to come under the umbrella of any new statutory licences, the rightsowners might want to think twice about waiving rights to remuneration in the way that they currently do for tape.
The Portuguese legislation apparently extends to electronic media its general exemption of alternative formats from copyright requirements. In Spain, the only other European Union country outside Scandinavia with relevant legislation, the issue has not been addressed by the law.
(end of annex - material dated October 1997)