Copyright and Disability in Education
What Is Copyright?
Copyright is a legal protection given to the owners of creative works, whether they be in print, visual, audio, physical forms or design. The claim of copyright is shown by the copyright symbol – © – followed by the date. This protects the owner of the creative work from unauthorised copying, use or sale of the work. The basic idea behind copyright is to protect the intellectual property and any income earning potential that may attach to the creative work.
Copyright rights are covered by the Commonwealth Copyright Act (1968) As Amended. It is a large and complex act because it has to cover the complex range of rights and responsibilities of copyright owners and users over a wide range of forms, formats, uses and potential infringements along with penalties.
A Brief History of Copyright and Disability Access in Education
Copyright has long been a vexed issue for people with disability, especially in the education sector. Before the days of readily available electronic texts, anyone with a print disability frequently faced major difficulties, time and expense in obtaining materials in an accessible format. University and TAFE disability services faced many challenges in obtaining permission to convert copyright materials into accessible formats. Fearing wholesale copying and distribution of their works, publishers were very reluctant to provide electronic copies of texts and journal articles, even if they had them available. Without electronic copies, permission had to be sought to scan printed texts into digital format that could either be read by a screen reader or similar program or converted to other formats such as audio or Braille. Even with permission, this process was time-consuming, expensive and fraught with problems. Scanning had to be high-quality, which meant expensive equipment, the original copy had to be of high quality (unlike many dodgy photocopies of course reading material provided by academics) and Optical Character Recognition (OCR) Software was generally only partially accurate in recognising text, and so required editing and proofreading once the OCR process had been completed.
A request for subtitled video would generally make the Disability Advisor breakout in a cold sweat and adopt the foetal position while whimpering in the corner of their office. It was that challenging.
Many publishers were very reluctant to provide permission, even though access was required under the Disability Discrimination Act. Many times disability services had to make the choice of which Act of Parliament they were going to contravene – Copyright or Disability Discrimination. Timeframes were usually very short and any delays in obtaining permission could be catastrophic for providing accessible material to the student in reasonable time.
These are but a few of the problems faced by academics, disability staff and particularly people with disability. Many people advocated for changes to the Copyright Act which would enshrine the rights to accessible material for people with disability. For many years, there have been rights of the fair dealing for academic or research purposes which allowed for the copying and reproduction of a proportion of works, (usually about 10%) for the purposes of education or research that there were no provisions for the copying, reproduction or conversion of materials for the purposes of disability access, since this usually required the conversion of a whole work into a different format, which was prohibited under the Copyright Act without the authorisation of the copyright owner. That authorisation was often slow and difficult to obtain, particularly in the early days of electronic material, because publishers feared the wholesale distribution of electronic material, and therefore loss of sales.
Another issue was the accessibility of electronic copies supplied by publishers or academics. They were often graphic PDF files, which cannot be read by screenreaders, and need OCR and editing to ensure accessibility. This was time consuming and expensive, often delaying access to materials for students.
There have been a number of changes over the last 20 years that have made the accessibility of copyright materials much better, faster and more readily available. These include technological and legislative changes.
Most publishers now have a program of eBook publication as well as print publication. Those eBooks are now required by law, both here and around the world, to be accessible. That means that new publications should be available for purchase at the same or lower price than the print publication. The advent of eReaders, such as Kindles and iPads, has meant that publishers have a ready market for their products, and have designed their publications to satisfy that market.
However, there are still legacy issues with older publications, and many of the eBooks available in Libraries and repositories such as the Gutenberg Project, are still the inaccessible graphic PDF format.
Other technological changes include the development of software to facilitate subtitling and audio descriptions of visual content, as well as the greater availability of visual material with subtitles and audio descriptions already available.
There have been numerous minor amendments to the Copyright Act over the years that have addressed some issues, but the amendments in 2006 finally removed the conflict between the DDA and the Copyright Act.
So, post 2006, creating and providing materials in an accessible format for people with disability was no longer running the risk of breaching the Copyright Act by meeting obligations under the Disability Discrimination Act, however, there were still limitations around permissions and reporting.
In 2013, the World Intellectual Property Organisation (WIPO) adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled which outlined minimum international standards to facilitate the availability of accessible material for people with print disabilities. Australia ratified the treaty, and in 2017, passed amendments to the Copyright Act to not only meet the requirements of the Marrakesh Treaty, but exceed them.
The 2017 amendments to the Copyright Act are comprehensive and flexible, and address many of the issues faced by people needing accessible formats. It covers all disabilities, all types of material and all needed formats. There are no reporting requirements and the legislation is designed to facilitate easy and straightforward access to accessible materials, rather than producing restrictions and limitations. It is usually a good idea to see if an accessible commercial copy is available, since that is likely to be cheaper and quicker than producing your own, but if one is not available, then it is fine to produce your own for the student with disability.
For a clear and comprehensive outline of the provisions of the current legislation and some valuable advice on how to manage the process of providing copyright materials in accessible formats, go to the excellent guide produced by the Australian Inclusive Publishing Initiative (AIPI) at https://aipi.com.au/making-content-accessible/.
The Guide provides:
- A basic outline of the provisions of the legislation
- A Disability access Copyright checklist
- Best practice impact management steps
- Some practical issues
- Things you do not have to do
- A one page checklist
It is well worth reading to familiarise yourself with the current situation with copyright and the provision of accessible materials for students with disabilities.
Written by Trevor Allan