Exceptions for Disability
Authors: Laurence Diver and Burkhard Schafer
Illustration: Davide Bonazzi
There are many situations where copyright can limit the way that people with disabilities access and make use of protected work. For example, a visually impaired user may need to convert the text of a book into a format compatible with screen reading software, a process that would require making a copy of the original work in its entirety.
At the same time, however, European human rights law states that every individual has the fundamental right to access social and cultural works, and to participate in their creation and development ‘regardless of frontiers’.
There is therefore an obvious conflict between these two areas of law. On the one hand those with disabilities have a fundamental right to access information, but on the other hand the author of a copyright work has the right to control the copying of their work, something which may be a necessary step in making a work accessible to those with a particular impairment.
The disability exceptions aim to resolve this conflict, subject to certain limitations. Having a disability does not permit the user simply to ignore copyright, but the existence of the exceptions does mean that the user should be able to enjoy the work as fully as possible.
In this commentary we use the term ‘disabled person’ rather than ‘person with a disability’ mainly because it matches the terminology of the relevant law. It also fits to the ‘social model of disability’: that is, persons do not so much have a disability as are disabled by their environment.
Aim of the disability exceptions
The disability exceptions are based upon the idea of inclusion: if a disabled person is unable to enjoy the copyright work to the same extent as a person without a similar impairment, then the exception may apply.
The exceptions apply to both physical and mental impairments, but this does not include visual impairments which are minor enough to be corrected by the use of glasses or contact lenses.
They allow a disabled person to make a copy of a work for personal use, and they allow libraries and other authorised bodies to make accessible copies for disabled persons.
Making an accessible copy for personal use
This exception allows a disabled person to create an adapted version of the work so they can enjoy it to the same degree as someone without that disability. This is referred to as an ‘accessible copy’. Importantly, this copy can only be made for the personal use of the disabled person. It can, however, be made by someone acting on behalf of the disabled person, such as a friend or carer.
The accessible copy can comprise the whole or part of the original work, but it can only include those adaptations which are necessary to enable the disabled person to enjoy the work to the same degree as someone without that disability.
When making an accessible copy there are two other important criteria to bear in mind.
1. The person has lawful possession or use of the original work
The exception only applies if the copyright work was initially acquired in a lawful way. For example, if a disabled person downloads an unauthorised copy of an ebook from a file sharing service the exception will not apply, regardless of the level of disability or any other circumstances, because he or she does not possess the ebook lawfully.
2. Commercially available accessible copies
If there is an accessible copy commercially available on reasonable terms which provides a level of access which enables enjoyment of the work by those with a particular impairment, the exception will not apply. In these circumstances an accessible copy may not be made and the disabled person must purchase the commercially available version instead.
For example, consider a person with a cognitive impairment who wishes to make an accessible copy of an ebook allowing specialist software to read the text to her in a way she can understand. The publisher of the ebook already provides an accessible version of the book for visually impaired users, which includes high-contrast text. This commercially available accessible version does not enable the person with the cognitive impairment to enjoy the work as much as a person without that impairment. So, even though an accessible version has been made available by the publisher, the exception will still apply: she can still make an accessible copy for her personal use. If, however, she had a visual impairment instead of a cognitive impairment and the publisher’s accessible version was sufficient to enable her enjoyment of the work, she would need to purchase that version instead of making her own accessible copy.
Libraries and other authorised bodies: making copies for disabled persons
Libraries and other authorised bodies are permitted to create accessible copies and make them available to disabled persons for their personal use, subject to the same two criteria discussed above. That is, the authorised body must have lawful access to the original before relying on the exception, and if there is an accessible copy already commercially available then they should purchase and make that copy available, instead of creating their own.
An ‘authorised body’ is defined as an educational establishment or a body that is not conducted for profit. Accessible copies made by authorised bodies must come with a statement that the copy has been made in accordance with this particular exception and, where practical, provide sufficient acknowledgement of the author of the work.
There are two other important issues to note when considering the role that authorised bodies play in making copyright works accessible to disabled persons.
1. Intermediate copies
If the authorised body needs to create various copies of the work in the process of creating an accessible version for a disabled person they are permitted to do so; these are called ‘intermediate copies’.
For example, a staff member in a library sets out to make a book compatible with screen magnifier software, in order that members of the library with moderate visual impairments can access it. In the process she needs to make several intermediate copies, each of which is an enhancement of the previous one, building towards the finished accessible version. First she creates a scanned copy of the book, then she creates a digitised version using optical character recognition software, and then from this she creates the finished accessible copy with bookmarks and a navigable table of contents.
The intermediate copies created in such a process can be stored and made available to other authorised bodies entitled to create an accessible copy. This allows other authorised bodies to create accessible copies without having to duplicate the work of the library from our scenario. For example, staff at a second library might use the digitised intermediate copy to create a Braille version of the book, for use by those whose visual impairment is too significant to allow use of the screen magnifier version, or who have multiple disabilities that prevent them from using text-to-voice transmission.
2. Records and notification
An authorised body must keep a record of the accessible copies it makes, the intermediate copies it makes, and the persons to whom those copies have been supplied. Moreover, these records must be made available to the copyright owner or her representative on request, provided reasonable notice has been given.
But they must do more than just keep records. Whenever an authorised body makes an accessible copy, within a reasonable time, they should notify either a designated representation of the copyright owner (for example an industry body which promotes the interests of writers) or the copyright owner (unless it is not reasonably possible to identify their name and address).
Charging for an accessible copy
Those who make accessible copies may not profit from them by selling them or making them available for hire. This applies to the disabled person themselves, to individuals acting on behalf of the disabled person, such as friends or carers, and to authorised bodies which create multiple accessible copies for use by a group of disabled people, such as library members.
The maker of an accessible copy may charge for the cost of creating and supplying the copy, but they may not make a profit from it. For example, a blind person’s carer who contacts a specialist company to have an ebook file converted into Braille can charge the cost of the conversion to the blind person but they cannot profit from undertaking this task.
Digital Rights Management (DRM) systems
DRM technology can create problems for the disability exceptions. DRM systems place technical restrictions on digital media, such as music MP3s or ebook files, to prevent any unauthorised copying or use. For example, while you might be able to play a music file on one or more of your own devices (your MP3 player, a phone, a tablet) you might not be able to play it on someone’s else’s device that contains specialist software to assist you; or, an ebook file might allow you to increase the font size of the text for readability but it may not allow screen reading software to narrate the text so that you can listen to the book instead of reading it. So, DRM technology makes it difficult to make copies of digital copyright works. Moreover, it is unlawful to remove the DRM system from the protected work without permission.
However, DRM systems don’t typically differentiate between copying for lawful purposes (such as making an accessible copy under the disability exceptions) and making a copy for unlawful purposes (for example, removing the technical restrictions to make the work available online). That is, although the disability exception might apply the disabled person (or her representative, or an authorised body) may be unable to create an accessible copy because the technology protecting the digital file cannot be bypassed. This means that the DRM system is effectively overriding the disability exceptions.
The designers of some DRM systems may anticipate this problem by building in accessibility features from the outset to remove the need to create accessible copies. However, if those features do not permit the disabled person to enjoy the work to the same degree as someone without that disability, then they will be at a disadvantage because they cannot create an accessible copy even though the exception applies.
The law does provide a mechanism for dealing with situations where a DRM system impedes the operation of the disability exceptions (or indeed any other exceptions). A disabled person, or a representative of a particular group of disabled people (for example a charity promoting the interests of visually impaired people), can lodge a complaint with the Secretary of State who may, at his or her discretion, direct the copyright owner (or their licensee) either to:
1) clarify whether there is a licensing scheme in place which would permit the disabled person (or people) to access the work, or
2) make available some method of carrying out the use permitted under the disability exceptions.
If so directed, the copyright owner is under an obligation to carry out the relevant action. If they fail to do so, the person or the organisation who lodged the complaint could sue.
Whether this complaint procedure is effective is questionable, however, since, according to the UK Intellectual Property Office, in the period up to September 2014 it had never been used. Indeed, research suggests that the procedure discourages disabled people from asserting their rights under the disability exceptions, and reducing their ability to access copyright works (without resorting to resort to unlawful methods of DRM removal).
The disability exception is contained in Sections 31A to 31F of the Copyright, Designs and Patents Act 1998, available at http://www.legislation.gov.uk/ukpga/1988/48/contents. Note that, at time of writing, the version of the 1988 Act on the government’s legislation website had not been updated to reflect the changes to disability exceptions described above. Those changes are contained in the 2014 Regulations (see below). Sections 296 to 296ZG of the 1998 Act relate to DRM (‘technological measures’ and ‘rights management information’), and the complaint procedure, described above.
The Copyright and Rights in Performances (Disability) Regulations 2014/1384, available at http://www.legislation.gov.uk/uksi/2014/1384/contents/made, amended the 1988 Act by extending the visual impairment exception to include physical and mental impairments.
The EU Information Society Directive 2001/29/EC permits member states to enact copyright exceptions ‘for the benefit of people with a disability… to the extent required by the specific disability’ (Article 5(3)(b)). The text is available at http://ec.europa.eu/internal_market/copyright/copyright-infso/index_en.htm.
The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, as amended) provides that the right to freedom of expression, which is enjoyed by everyone, includes the right to ‘receive and impart information and ideas without interference by public authority and regardless of frontiers.’ (Article 10(1)). The text is available at https://ec.europa.eu/digital-agenda/sites/digital-agenda/files/Convention_ENG.pdf.
The Charter of Fundamental Rights of the European Union (2000) repeats the European Convention’s reference to the right to impart information and ideas ‘regardless of frontiers’ in Article 11(1). The text is available at http://www.europarl.europa.eu/charter/pdf/text_en.pdf.