WIPO

        E

        SCCR/15/7

        ORIGINAL: English

        DATE: February 20, 2007

WORLD INTELLECTUAL PROPERTY ORGANIZATION

GENEVA

STANDING COMMITTEE ON COPYRIGHT
AND RELATED RIGHTS

Fifteenth Session

Geneva, September 11 to 13, 2006

STUDY ON COPYRIGHT LIMITATIONS AND EXCEPTIONS
FOR THE VISUALLY IMPAIRED

prepared by
Judith Sullivan*
Consultant, Copyright and Government Affairs

TABLE OF CONTENTS

EXECUTIVE SUMMARY 9

INTRODUCTION 12

CHAPTER 1 15

PROVISION IN INTERNATIONAL TREATIES RELEVANT TO COPYRIGHT EXCEPTIONS FOR VISUALLY IMPAIRED PEOPLE 15

CHAPTER 2 28

EXAMINATION OF COPYRIGHT EXCEPTIONS FOR VISUALLY IMPAIRED PEOPLE IN NATIONAL LEGISLATION 28

CHAPTER 3 47

ANALYSIS OF THE OPERATION OF DISTRIBUTION AND IMPORTATION RIGHTS 47

CHAPTER 4 65

CASE STUDIES SHOWING COPYRIGHT PROBLEMS 65

CHAPTER 5 81

CASE STUDIES SHOWING EFFECTIVE SOLUTIONS 81

CHAPTER 6 97

ANALYSIS OF THE PROBLEMS AND SOLUTIONS 97

CONCLUSIONS 133

RECOMMENDATIONS 134

ANNEX 1 137

PRINCIPLE SOURCES OF INFORMATION ABOUT NATIONAL LAWS 137

ANNEX 2 138

FULL ANALYSIS OF SPECIFIC EXCEPTIONS FOR THE BENEFIT OF VISUALLY IMPAIRED PEOPLE IN NATIONAL LAWS 138

ANNEX 3 183

DISTRIBUTION AND IMPORTATION RIGHTS IN NATIONAL LAWS 183

EXECUTIVE SUMMARY

- Collaboration between all stakeholders can help ensure that technology improves access to the written word for visually impaired people and WIPO could help facilitate and encourage such activity as well as help to raise awareness amongst all stakeholders about the issues covered by the Study. The ideal is for accessibility to be built into the ordinary publishing process.

- Further debate about provision relating to exceptions in international treaties and conventions in the intellectual property area may be desirable in the long term, and developing countries may need further guidance about exceptions, but international agreements relevant to the rights of disabled people may already require countries to take the needs of disabled people into account when framing their copyright laws.

- Although exceptions to copyright are unlikely to deliver full accessibility to all publications for visually impaired people, they may nevertheless be justified, but need to balance the interests of all stakeholders and work in ways that encourage rather than deter more comprehensive solutions.

- Self-help access to the written word by visually impaired people may be desirable under private copying exceptions or otherwise and it would be helpful for information to be available in every country about what is possible.

- Exceptions that permit non-profit making of accessible copies by organisations assisting visually impaired people are more useful if defined in functional terms and where they are broadly drawn regarding type of accessible copy that may be made, but other provision may be needed in an exception to protect the interests of right holders and provisions should not necessarily act against right holders being entitled to a fair price for use of their works. It might be helpful for WIPO to facilitate a discussion on the scope of exceptions, particularly given the wide differences that currently exist in national laws.

- Exceptions that provide for the import and export of accessible copies across borders might be appropriate, but provision may be particularly complicated where countries do not provide international exhaustion of rights, so licensing might provide a better approach. WIPO might be able to facilitate discussions between stakeholders about licensing.

- Licensing, including collective licensing, may offer other benefits too, such as secure access to publishers’ e-files, and legislative changes may be better if they support and encourage a trusted environment where licensing can be developed. Standard permission requests and licence agreements may benefit right holders as well as non-profit bodies, such as libraries for the blind, producing accessible formats.

- Conflict between the use of DRMs and exceptions to copyright may be best explored further by looking at specific exceptions for the benefit of visually impaired people, building on earlier work initiated by WIPO.

INTRODUCTION

CHAPTER 1

PROVISION IN INTERNATIONAL TREATIES RELEVANT TO COPYRIGHT EXCEPTIONS FOR VISUALLY IMPAIRED PEOPLE

1.1 Introduction

- Reproduction

- Adaptation

- Distribution, including rental and lending

- Broadcasting by wireless means

- Other communication to the public by electronic transmission

- Public performance

1.2 The Berne Convention for the Protection of Literary and Artistic Works (The Berne Convention)

1.2.1 Reproduction

- Exceptions must comply with the 3-step test:

o Provision for visually impaired people is likely to be able to meet the first step, i.e. that it is a “certain special case” – it will probably need to be clearly defined and narrow in scope and reach.

o Any conflict with the second step will depend on what is meant by the “normal exploitation of a work” – it may be necessary to consider what markets the author does, or should be able to, control, both now and in the future, as well as whether activity under an exception avoids economic competition with the markets exploited by the author.

o The requirement to not “unreasonably prejudice the legitimate interests of the author” requires an exception to be proportionate – it may require consideration to be given to the payment of equitable remuneration, depending on the scope of the exception.

- An exception for the benefit of visually impaired people seems possible, but it is likely to need careful drafting to comply with the conditions.

1.2.2 Adaptation

- No provision in the Convention for exceptions to adaptation rights in Articles 12 and 14.

- No clear possibility of an exception being permitted by the minor reservations doctrine for the main adaptation right in Article 12, but it may be possible to argue this for cinematographic adaptation rights in Article 14.

- Could also argue that any adaptation that occurs when making accessible formats for visually impaired people is a species of reproduction and so covered by permissible exceptions to that right, but it is not certain whether this is acceptable.

- The possibility of exceptions for the benefit of visually impaired people is therefore currently not clear.

1.2.3 Distribution, including rental and lending

- These rights are not specifically provided in the Convention, other than distribution right in Article 14(1) for literary and artistic works adapted and reproduced as cinematographic works.

- Distribution, however, is linked to reproduction – when reproductions are authorised, distribution usually happens – so limitations on exceptions to the reproduction right may impliedly limit exceptions to distribution rights.

- Minor reservations doctrine can apply to Article 14, but scope of exceptions possible using this justification may be very limited.

- In general, it seems unlikely there would be a problem where exceptions permitting reproductions for the benefit of visually impaired people in compliance with the Convention, also permit restricted types of distribution of copies so made to those people.

1.2.4 Broadcasting by wireless means

- Article 11bis(2) permits compulsory licences for wireless broadcasting, or rebroadcasting, which could encompass exceptions with remuneration to right holders.

- No provision exists in the Convention regarding exceptions, but the minor reservations doctrine applies which would permit de minimis exceptions, including ones that do not have a requirement for remuneration.

- Exceptions for the benefit of visually impaired people which take the form of compulsory licences seem to be clearly permitted, but limited exceptions without remuneration may also be possible.

1.2.5 Other communication to the public by electronic transmission

- Some rights are provided by Articles 11 and 11bis, 11ter and 14, but this area is not comprehensively covered and there is no provision in the Convention regarding exceptions, other than possibility under Article 11bis(2) for compulsory licences for initial communication of literary and artistic works by wireless means and by communication of wireless broadcasts by wire.

- Minor reservations doctrine applies in all cases which would permit de minimis exceptions without remuneration.

- Unlikely to therefore be a problem with limited exceptions for the benefit of visually impaired people.

1.2.6 Public performance

- Rights provided by Articles 11, 11bis, 11ter and 14 but there is no provision in the Convention regarding exceptions, other than the possibility under Article 11bis(2) for compulsory licences for public performance by reception of a wireless broadcast.

- Unlikely to therefore be a problem with limited exceptions for the benefit of visually impaired people, with or without remuneration.

1.3 The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (The Rome Convention)

1.3.1 Reproduction

- Protection for performers under Article 7(1) need not be by granting an exclusive right and the nature of provision may rule out the possibility of a compulsory licence.

- Exclusive rights for producers of phonograms and broadcasting organisations in respect of their broadcasts – see Articles 10 and 13 – do not provide for compulsory licences.

- An exception for the benefit of visually impaired people therefore seems possible, but probably not one delivered as a compulsory licence.

1.3.2 Adaptation

- Rights not clearly provided by Rome so exceptions for the benefit of visually impaired people presumably possible at least to the extent permitted by the Berne Convention.

1.3.3 Distribution, including rental and lending

- Rights not specifically provided in Rome, so as in the case of the Berne Convention, it seems unlikely there would be a problem where exceptions permitting reproductions for the benefit of visually impaired people in compliance with Rome, also permit restricted types of distribution of copies so made to those people.

1.3.4 Broadcasting by wireless means

- Only rights with respect to published phonograms really relevant where the right under Article 12 for performers and producers of phonograms is only to a single equitable remuneration, so compulsory licensing in general for this activity is possible.

- A compulsory licence replacing the right that broadcasting organisations are given by Article 13 to control rebroadcasting of their broadcasts appears not to be possible, but “rebroadcasting” rights are limited to simultaneous broadcasting in any case.

- An exception that takes the form of a compulsory licence applying to all subject matter may therefore need careful drafting, but exceptions to this right for the benefit of visually impaired people which do not involve remuneration are also likely to be possible as seems the case for the Berne Convention.

1.3.5 Other communication to the public by electronic transmission

- Scope and extent of rights required by Rome do not seem clear.

- Unlikely to be a problem providing exceptions for the benefit of visually impaired people at least to the extent compatible with the Berne Convention.

1.3.6 Public performance

- The right with respect to published phonograms under Article 12 for performers and producers of phonograms is only to a single equitable remuneration so compulsory licensing in general for this activity is possible.

- The right for broadcasting organisations under Article 13 only applies where public performance by reception of a broadcast is in places made accessible to the public against payment of an entrance fee, and compulsory licences generally possible too.

- Exceptions for the benefit of visually impaired people likely to be possible which could be without remuneration, at least to the extent that this is possible under Berne.

1.3.7 Fixation

- The nature of the protected subject matter means that Rome provides performers with the possibility of preventing unauthorised fixation of an unfixed performance (Article 7) and broadcasting organisations with an exclusive right regarding the fixation of their broadcasts (Article 13).

- There is no counterpart in Berne given the different nature of what is protected by that Convention, which makes it more difficult to understand how Article 15(2) should be interpreted for these rights.

- Conditions relating to reproduction of fixations in Articles 7 and 13 seem to condone the possibility of fixations being made under exceptions permitted by Article 15.

- Exceptions for the benefit of visually impaired people therefore seem possible.

1.4 The Agreement on Trade-Related Aspects of Intellectual Property Rights (The TRIPS Agreement)

1.4.1 Reproduction

- As for the Berne Convention for literary and artistic works, and in this respect Berne includes the 3-step test, but there may be differences because the test of proportionality in the last step of the 3-step test is judged with respect to authors under Berne and right holders under TRIPS.

- Not clear what limitations must apply to exceptions to protection for computer programs and compilations of data, but it seems unlikely to be more than either Berne limitations and/or TRIPS 3-step test limitations at most.

- Regarding performers’ rights, the rights of producers in phonograms and the rights of broadcasting organisations in broadcasts, exceptions must be as permitted by Rome.

- An exception for the benefit of visually impaired people in respect of any of the protected subject matter seems possible, but it is likely to need to be carefully drafted to comply with the conditions.

1.4.2 Adaptation

- No more clarity than in the Berne and Rome Conventions regarding permitted exceptions.

- Not clear what exceptions for the benefit of visually impaired people might be permitted, but, if any exceptions for literary and artistic works are possible, they may need to comply with the TRIPS 3-step test as well as any other conditions.

1.4.3 Distribution, including rental and lending

- Rental rights are clearly provided for computer programs, cinematographic works and phonograms – see Articles 11 and 14(4).

- No requirement to provide a non-commercial lending right.

- For works, i.e. cinematographic works and possibly computer programs, the TRIPS 3-step test is relevant to exceptions.

- Exceptions permitting rental for the benefit of visually impaired people may therefore be possible, although application of the 3-step test suggests that non-commercial loans are likely to be more acceptable, an activity which is not restricted by TRIPS in any case.

- As for the Berne and Rome Conventions, no specific distribution right is provided and exceptions permitting distribution by other means of copies that can be made under exceptions to the reproduction right are also likely to be possible.

1.4.4 Broadcasting by wireless means

- For Berne works, exceptions seem in principle possible.

- For fixations of performances and phonograms, no rights are provided and for broadcasts, the right is limited to rebroadcasting where the possibility for exceptions seems to be the same as for Rome.

- TRIPS 3-step test might impose additional restrictions, but:

o Seems unlikely that TRIPS 3-step test is to be applied in addition to provision in Berne that permits compulsory licensing.

o Also, uncertain that de minimis requirements under minor reservations doctrine should apply as well as 3-step test.

- Exceptions to this right for the benefit of visually impaired people which do not involve remuneration as well as ones that do seem in principle possible, and for some protected subject matter there are no rights in this area in any case.

1.4.5 Other communication to the public by electronic transmission

- As for the Berne Convention, there is unlikely to be a problem with exceptions for the benefit of visually impaired people, which involve remuneration or otherwise

- Rights in respect of fixations of performances, phonograms and broadcasts are not required by TRIPS in any case so TRIPS does not impose any restrictions on exceptions to these rights.

- As for broadcasting rights under TRIPS, it is not clear to what extent the

TRIPS 3-step test imposes additional constraints, if any.

1.4.6 Public performance

- As for the Berne Convention, there is unlikely to be a problem with exceptions for the benefit of visually impaired people.

- Rights are not required for fixations of performances, phonograms and radio broadcasts in any case and only as for the Rome Convention for television broadcasts.

- As for broadcasting rights under TRIPS, it is not clear to what extent the

TRIPS 3-step test applies additional constraints, if any.

1.4.7 Fixation

- As for the Rome Convention, to the extent this right applies, exceptions for the benefit of visually impaired people seem possible.

1.5 The WIPO Copyright Treaty of 1996 (The WCT)

1.5.1 Reproduction

- Berne Convention rights are clarified, or possibly extended, by the WCT, but the main provision governing exceptions to rights is still a 3-step test.

- An exception for the benefit of visually impaired people seems possible, but it is likely to need to be carefully drafted to comply with the conditions.

1.5.2 Adaptation

- As for the Berne Convention

1.5.2 Distribution, including rental and lending

- Exceptions to the distribution right in Article 6 are governed by the 3-step test in Article 10(1).

- Rental rights only apply to computer programs, cinematographic works and works embodied in phonograms, and for the last of these may only need to be an equitable remuneration right rather than an exclusive right – see Article 7 of the WCT.

- No requirement to provide a non-commercial lending right.

- Exceptions to rental rights are governed by the 3-step test in Article 10(1).

- An exception for the benefit of visually impaired people seems possible, but application of a 3-step test may affect the extent to which commercial distribution and rental rather than non-commercial distribution and lending can be permitted.

1.5.3 Broadcasting by wireless means

- This right is encompassed by the broad right of communication to the public in Article 8 of the WCT, but this must be without prejudice to Article 11bis(1)(i) and (ii) of the Berne Convention, so this right and, in view of the agreed statement relating to Article 10 of the WCT, exceptions to the right, are probably still governed by Berne.

- Exceptions for the benefit of visually impaired people which take the form of compulsory licences therefore seem to be clearly permitted, but limited exceptions without remuneration may also be possible.

1.5.4 Other communication to the public by electronic transmission

- As for broadcasting, some rights are provided by the Berne Convention, so permitted exceptions for these are probably still governed by Berne where exceptions seem possible.

- Exceptions to any new right, such as the making available to the public in such a way that members of the public may access works from a place and at a time individually chosen by them, will be governed by the 3-step test in Article 10 of the WCT.

- Unlikely to therefore be a problem with limited exceptions for the benefit of visually impaired people, but these may need careful drafting given the different origins of rights.

1.5.5 Public performance

- Rights and exceptions are possible as in the Berne Convention as no new provision regarding these rights is in the WCT.

1.6 The WIPO Performances and Phonograms Treaty of 1996 (The WPPT)

1.6.1 Reproduction

- Exceptions to the right in Article 7 of the WPPT for performers in respect of their performances fixed in phonograms and Article 11 of WPPT for producers of phonograms seem to be limited by the 3-step test and literary and artistic work comparator test.

- As exceptions for the benefit of visually impaired people to reproduction rights for literary and artistic works seem possible, similar exceptions seem possible under the WPPT.

1.6.2 Adaptation

- No rights appear to be provided so exceptions to any rights in national laws should not be a problem

1.6.3 Distribution, including rental and lending

- Exceptions to distribution and commercial rental rights must comply with the

3-step test and literary and artistic work comparator test.

- There is no requirement to provide a non-commercial lending right.

- As for the WCT, an exception for the benefit of visually impaired people seems possible, but application of the 3-step test may affect the extent to which commercial distribution and rental rather than non-commercial distribution and lending can be permitted.

1.6.4 Broadcasting by wireless means

- WPPT Article 15 only requires a remuneration right, so exceptions that amount to compulsory licences are possible.

- Exceptions for the benefit of visually impaired people without remuneration could be possible too by comparison with what is possible under the WCT for literary and artistic works for example, but the 3-step test also applies.

1.6.5 Other communication to the public by electronic transmission

- Position for other communication to the public likely to be the same as for broadcasting, other than the right of making available on demand when the WPPT Articles 10 and 14 require an exclusive right.

- 3-step and literary and dramatic work comparator tests probably both apply but may also need to have regard to the origin of some of the rights in the Rome Convention.

- As for the WCT, unlikely to therefore be a problem with limited exceptions for the benefit of visually impaired people, but these may need careful drafting given the different origins of rights under both the WCT and WPPT.

1.6.6 Public performance

- No new provision in the WPPT regarding these rights so the WPPT should have no affect of what exceptions are possible

1.6.7 Fixation

- Performers right in WPPT Article 6 is an exclusive right so may be some difference compared to the Rome Convention.

- Uncertain how a literary and artistic work comparator test would apply given the lack of an equivalent right in that area.

- Exceptions are likely to be possible for the benefit of visually impaired at least as limited by the 3-step test.

1.7 European Union Directives

CHAPTER 2

EXAMINATION OF COPYRIGHT EXCEPTIONS FOR VISUALLY IMPAIRED PEOPLE IN NATIONAL LEGISLATION

2.1 Introduction

2.2 Scope regarding end beneficiary

- Australia which targets people with a print disability, defined as a person without sight, a person whose sight is severely impaired, a person unable to hold or manipulate books or to focus or move his or her eyes, or a person with a perceptual disability; and

- Canada which targets people with a perceptual disability, defined as a disability that prevents or inhibits a person from reading or hearing a literary, musical, dramatic or artistic work in its original format, and includes such a disability resulting from (a) severe or total impairment of sight or hearing or the inability to focus or move one’s eyes, (b) the inability to hold or manipulate a book, or (c) an impairment relating to comprehension.

Other approaches to defining the beneficiaries of exceptions which might give some certainty about scope can be found in:

- the United States of America where a test of disability includes those who are eligible or may qualify to receive books for blind people under other legislation; and

- in France where there is a numerical measurement of the extent of the disability, measured against relevant standards.

- Norway which targets blind people and people whose sight is impaired and others who due to a disability cannot perceive the work in the normal way; and

- the United Kingdom which targets a visually impaired person defined as a person (a) who is blind, (b) who has an impairment of visual function which cannot be improved by the use of corrective lenses to a level that would normally be acceptable for reading without a special level or kind of light, (c) who is unable through physical disability to hold or manipulate a book, or (d) who is unable through physical disability to focus or move his eyes to the extent that would normally be acceptable for reading.

2.3 Works that may be used

- Germany, where the exception applies to works where there is not an accessible version already available; and

- Slovenia, where the exception applies to works that are not available in the desired form.

- New Zealand, where the exception applies to literary or dramatic works so long as, after making reasonable efforts, it has not been possible to obtain the work in the modified form needed within a reasonable time and at an ordinary commercial price; and

- Singapore, where the exception applies to literary or dramatic works that have been published, but where the format to be made has already been published, it can only be made under the exception if satisfied after reasonable investigation that it is not possible to obtain a published copy in a reasonable time and at an ordinary commercial price.

2.4 Profit/non-profit making activity

non-commercial, not for gainful intent or similar. For a few of these countries, such as Ireland and New Zealand, this is achieved by saying that the body that is permitted to undertake the activity under the exception in order to assist visually impaired people must not be profit-making. A requirement of this type also applies to bodies undertaking activity under exceptions in Singapore and the United Kingdom, except where the body is an educational establishment. In Canada, this same type of limitation applies to activity by an organisation, but activity by individuals is also possible and is not similarly constrained. A limitation to activity by not-for-profit organisations could be achieved in, for example, Nigeria and Japan where the activity under the exception is undertaken by government approved establishments.

- no more than the costs of making and supplying copies to visually impaired people can be recovered under exceptions in New Zealand and the United Kingdom;

- in El Salvador and Panama, the visually impaired people attending the communication of the works made accessible to them must do so free of charge and those involved in the event must receive no remuneration for their involvement;

- in Paraguay, Portugal and Spain, the use of the accessible copies, presumably by visually impaired people, must not be for profit-making purposes; and

- in the Republic of Korea a limitation to non-profit making activity in respect of making sound recordings probably exists by the limited scope of where sound recordings can be used.

2.5 Permitted/restricted acts covered

Table 1: Exceptions defining permitted acts without using language of restricted acts

Country

How permitted/restricted acts are defined

China

“transliteration of a published work into Braille and publication of the work so transliterated”

Croatia

“use of copyright works”

Denmark

“to use and distribute copies of published works”

Iceland

“Braille editions … may be printed and published”

Ireland

“make a copy … and supply that modified copy”

Macau

“reproduction or any other … use of published works” and “the right to transform, by translation or otherwise, to the extent necessary”

Malaysia

“any use of a work … in the public interest”

Netherlands

“reproduction and publication”

New Zealand

“make copies or adaptations … for the purpose of providing copies to persons with a print disability”

Poland

“use disseminated works”

Portugal

“reproduction or other forms of use”

United Kingdom

“make or supply accessible copies” and “supplying includes lending”

2.6 Restrictions on who may undertake activity

2.7 Special formats or any accessible formats

Table 2: Exceptions not limiting type of accessible format

Country

Provision on accessible formats

Australia37

“the making … of a sound recording of a work”, “the making … of Braille versions, large-print versions, photographic versions or electronic versions of the work” and “the making of a sound broadcast”

Austria

“reproduction … in a suitable form for a disabled person”

Croatia

“the work is reproduced in a manner directly related to the disability of … people [with a disability] to the extent required by the specific disability”

Czech Republic

“reproduction … to the extent required by the specific disability”

Denmark

“copies are specifically intended for the blind, visually impaired … [but does not apply] to use which consists solely of sound recording” and “for the purpose of lending to the blind, the visually impaired … it is permitted to make sound recordings”

Finland

“copies … made with the purpose of rendering the text readable by visually impaired persons” and “make copies … by sound recording”

France

“reproduction … to the extent consistent with the nature of the disability”

Germany

“ reproduce … in formats accessible to disabled persons to the extent required by the specific disability”

Greece

“reproduction … for uses which are directly related to the disability, to the extent required by the specific disability”

Ireland

“make a copy … to meet the special needs of a person who has a physical or mental disability”

Italy

“reproduction … directly related to the disability … and limited to the extent required by the specific disability”

Latvia

“reproduce … in a form perceivable by [visually impaired] persons and insofar as it is necessary in the case of the relevant impairment”

Lithuania

“reproduction … in the form intended for people having hearing or visual impairment, to the extent required by the specific disability”

Mongolia

“reproduction for use by blind people”

Netherlands

“reproduction … provided it is directly related to the handicap … and is necessary because of the handicap”

New Zealand

“copies that are in Braille or otherwise modified for [the] special needs [of persons who have a print disability]”

Poland

“use directly refers to their [disabled persons’] disability”

Slovakia

“use exclusively to cater for the needs of handicapped people to the extent justified by their handicap”

Slovenia

“use is directly related to the disability and limited to its extent”

Sweden

“make, by means other than recording of sound, copies… that people with a disability need in order to be able to enjoy the work” and “libraries and organisations … may by means of sound recording make such copies”

United Kingdom

“make an accessible copy” which means “a version which provides for a visually impaired person improved access to the work”

Table 3: Exceptions permitting Braille and other special formats

Country

How specialised formats are defined

Armenia

“reproduction in “raised dots” prints (in Braille) or by other special ways”

Azerbaijan

“the reproduction in Braille or by other special means for the benefit of the blind”

Belarus

“reproduction in Braille or by other special means”

Bulgaria

“reproduction … in Braille or another analogous method”

Brazil

“reproduction … in Braille or by means of another process using a medium designed for [the visually handicapped]”

Canada

“make a copy or sound recording … in a format specially designed for persons with a perceptual disability …but [this] does not authorise the making of a large print book”

Estonia

“publication … in Braille or another technical manner for the blind”

Georgia

“reproduction … with relief-dotted print or of other special means for the blind persons”

Hungary

“reproduction … exclusively designed to satisfy the needs of disabled persons”

Kazakhstan

“reproduction in Braille or by other special means for the benefit of the blind”

Kyrgyzstan

“reproduction … using the Braille system or other special means for the blind”

Nicaragua

“reproduction … by means of the Braille system or another specific procedure”

Paraguay

“reproduction of works in Braille or another specific form for the exclusive use of the visually handicapped”

Peru

“reproduction … by means of the Braille system or another specific procedure”

Portugal

“reproduction … employing Braille or another system for blind persons”

Spain

“reproduction … using the Braille system or another specific method”

Russian Federation

“reproduction … by using the Braille system or other special means for the blind”

Uzbekistan

“reproduction … by relief-dot font or other means for blind persons”

United States of America

“reproduce … copies or phonorecords … in specialised formats exclusively for use by blind or other persons with disabilities”

Table 4: Exceptions specifying other types of provision on accessible formats

Country

Other provision on accessible formats

Dominican Republic

“public communications … made for the benefit of blind and other disabled persons”

El Salvador

“communications … made for the benefit of blind persons”

Gabon

“made … for welfare purposes”

Japan

“reproduce in Braille”, “record on a memory by means of a Braille processing system using a computer”, “make sound recordings” and “large print”

Republic of Korea

“reproduce in Braille” and “make sound recordings”

Macau

“reproduction in Braille”, blind persons are also able to fix lectures by professors “by any means” for their exclusive use and there is a general right of transformation for those with the legal right to use a work “to the extent necessary for its authorised use”

Malaysia

“any use made by ... the Braille MAB Library (Braille Publishing and Library Unit)”

Nigeria

“reproduction in Braille … and sound recordings”

Norway

“copies for use of the blind and persons whose sight is impaired … made in a form other than a sound fixation” and “the King may decide … on stipulated terms … a fixation on a device that can reproduce [the work]”

Panama

“communications … made for the blind and for other handicapped persons”

Singapore

“making … of a record embodying a sound recording of the work” and “making … of a Braille version, a large-print version or a photographic version, of the work”

2.8 Compulsory licence or exception

profit-making activity and activity that could compete with accessible formats that are commercially available.

2.9 Acknowledgement required

2.10 Other conditions

Armenia, Azerbaijan, Belarus, Bulgaria, China, Croatia, Czech Republic, Dominican Republic, Estonia, Georgia, Greece, Hungary, Iceland, Italy38, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Paraguay, Poland, Portugal39, Russian Federation, Slovakia40, Slovenia, Ukraine and Uzbekistan.

- keeping records that right holders may be given or inspect and/or giving notice to the right holder and/or marking copies made in some way;

- not permitting activity which would undermine the author’s moral right to integrity in his or her work;

- taking steps to reduce, or specifically ruling out, use of accessible copies for purposes other than to give visually impaired people access to the work, and/or making it clear that such use, and/or the copies, will then be infringing;

- a test of fairness to be applied to the activity and a requirement not to interpret provisions in an extensive manner;

- limiting the location, or the purpose, of the use by visually impaired people, such as only educational or private use; and

- complying with further regulations that might be set by the government.

Table 5: Additional conditions applying to the exception

Country

Additional condition(s)

Australia

Under the exception permitting the making and communicating of accessible formats of literary and dramatic works, for non-electronic copies of those works, the user must mark copies made and make, retain and send records of activity to the collecting society; for electronic copies must give notice to the collecting society with required details of copies made or communicated, must take reasonable steps to ensure that the communication can only be received or accessed by persons entitled to receive or access it (for example, teachers or persons receiving educational instruction or other assistance provided by the relevant institution) and comply with any other prescribed requirements.

Under the exception permitting facsimile reproduction of published editions, for published editions of works still in copyright, the exception only applies where by virtue of the first exception above reproduction of those works is permitted.

Under the exception permitting sound broadcasts of literary and dramatic works, the user must keep records of the making of the sound broadcast which can be inspected by copyright owners.

Czech Republic

Use of copies made for any other purpose than assisting people with a disability specifically forbidden.

Denmark

In order to counteract piracy rights to use lapse if an acquired copy is made available to the public. Also, there must be no more alteration of the work than that required for the permitted use.

Finland

The work must not be altered more than necessitated by the permitted use

France

The organizations undertaking the activity must provide proof of their activity in a number of specified ways

Greece

The Minister of Culture may by resolution determine further conditions

Hungary

Use must be in compliance with the requirements of fairness and not designed for a purpose incompatible with the intention of free use. Also, the provisions relating to free use shall not be interpreted in an extensive manner.

Iceland

The work may not be altered more extensively than is required for the purposes of reproduction

Ireland

Where a copy made under the provision is later made available to the public such as by selling, renting or lending, it becomes an infringing copy

Italy

As well as defining applicable disabilities, the criteria to be used to identify beneficiaries as well as other conditions applying to the exception can be set by Ministerial decree.

Japan

Under the exception permitting large print copies of school textbooks, this is limited to only doing so for the purposes of study by the visually handicapped children or pupils. Publisher must be informed of intention to make reproductions in the form of a textbook in large print.

Republic of Korea

For sound recordings, the exception only permits their use at facilities established for the promotion of the welfare of the blind as prescribed by the Presidential Decree and these currently appear to be limited to facilities established by various non-profit making persons/bodies and special schools for visually handicapped people

Lithuania

Activity must be for educational, teaching and scientific research purposes

Malaysia

The use must be in the public interest, compatible with fair practice and the provisions of any regulations

New Zealand

The copyright owner must be notified of the making of the copy or adaptation. Where any copy made is subsequently dealt with (other than providing to the person with a print disability), the copy becomes an infringing copy.

Norway

The King may stipulate terms for making a fixation of a work on a device that can reproduce the fixation.

The provision regarding making a fixation of a film, picture or broadcast applies only as set out in regulations issued by the King.

Paraguay

The exception must have a restrictive interpretation and must not be applicable to cases that are contrary to honest use.

Peru

Must be for the private use of blind people. The exception must have a restrictive interpretation and must not be applicable to cases that are contrary to honest use.

Singapore

Handicapped reader must use copy for research or study or for instructing himself on any matter. Only applies to copying of a handicapped reader’s copy of an article in a periodical or another work if a record of the copying, complying with regulations, is made as soon as practicable.

Slovenia

The extent of exploitation of copyright works under the exception must be limited by the intended purpose and compatible with fair practice

Spain

Must be for the private use of blind people

Sweden

A work may not be changed, or made available to the public, in a manner that is prejudicial to the author’s literary or artistic reputation, or altered more than is necessary for the use. Specifically requires that copies must not be used for purposes other than those set out in the exception.

United Kingdom

Under the exception permitting visually impaired people to make, or have made, copies of works they possess, accessible copies made may be transferred to other visually impaired people entitled to act under the exception, or to intermediaries who will transfer the copies to entitled visually impaired people, so long as they also have lawful possession of an inaccessible copy of the work. Where a person has an accessible copy without entitlement, or it is subsequently dealt with, the copy becomes an infringing copy. Changes which would infringe the right not to have a work subjected to derogatory treatment are not possible.

Under the exception permitting approved bodies to make multiple accessible copies, any copies made by educational establishments must only be used for their educational purposes. If the inaccessible copy is copy-protected, then the accessible copy must be too to the extent this is practicable. A copy becomes an infringing copy when held by a no longer entitled body or when it is subsequently dealt with. Where activity has led to infringement of copyright, the Secretary of State may by order prohibit certain approved bodies by name or type from acting under the exception, or the making of accessible copies of a certain type. Changes which would infringe the right not to have a work subjected to derogatory treatment are not possible.

United States of America

Under the exception permitting authorized entities to make specialized formats, copies in specialized formats must bear a notice that any further reproduction or distribution other than in a specialized format is an infringement.

Regarding publishers’ obligations to provide electronic files of the content of print instructional material, the same condition applies. Also, the publisher must have the right to publish the print instructional materials in print format.

Under the exception permitting the transmission of performances of literary works, for a dramatic literary work, the exception only permits a performance on a single occasion, and is specifically disapplied from more than one performance of the same work by the same performers or under the auspices of the same organization.

2.11 Overridable by contract

- In Germany there appears to be a provision which stipulates that contracts are void if they would have the effect of overriding exceptions to copyright.

- In Portugal, contractual conditions that override the exception are null and void although a contract could require remuneration to be paid for the activity.

- By contrast, in the United Kingdom, it is clearly indicated that the exceptions to copyright do not affect any other right or obligation restricting the doing of any of the specified acts. Other rights or obligations could, presumably, encompass a contract preventing enjoyment of the exceptions provided for the benefit of visually impaired people.

2.12 Interplay with DRMs

- The study on Current Developments in the Field of Digital Rights Management prepared by Mr Jeffrey Cunard, Mr Keith Hill and Mr Chris Barlas41

- The study on Automated Rights Management Systems and Copyright Limitations and Exceptions prepared by Mr Nic Garnett42

CHAPTER 3

ANALYSIS OF THE OPERATION OF DISTRIBUTION AND IMPORTATION RIGHTS

3.1 Introduction

3.2 International conventions and treaties

(a) distribution of physical copies that leads to a permanent change in ownership of the copy distributed;

(b) commercial rental and non-commercial lending of a physical copy where the ownership of the copy is only transferred on a temporary basis (although in general commercial rental is unlikely to satisfy requirements in exceptions that activity be for

non-commercial purposes);

(c) dissemination of an accessible electronic copy by communication to the public via electronic transmission, such as over the internet, where the recipient of that transmission receives a digital copy which they can keep permanently; and

(d) dissemination of an accessible copy by communication to the public via electronic transmission where technological means are used to limit the time for which the recipient can keep the accessible copy, or to permit only access with no downloading of a complete copy, such as access by viewing in large print on a screen or having text converted to speech.

3.2.1 Distribution of physical copies

3.2.2 Rental and lending of physical copies

3.2.3 Electronic communication to the public resulting in permanent copies

3.2.4 Electronic communication to the public resulting in only temporary or no copies

3.3 European Union law

3.3.1 Exhaustion of rights

3.3.2 Lending rights

3.3.3 Temporary copies

3.3.4 Liability for infringement

3.4 Introduction to provision in national law

3.5 Distribution to individuals

- Croatia because it permits “use” for the benefit of people with a disability

- Ireland because it permits “supply” of a modified copy to people with a disability

- Macau because it permits “any other non-profit making use”

- New Zealand because it permits copies to be made “for the purpose of providing persons who have a print disability” with copies

- Nigeria because the restricted act of distribution seems to be limited to commercial activity and no right of communication to the public by electronic transmission seems to exist so non-commercial distribution is possible

- Poland because it is permitted to “use” works for the benefit of disabled persons

- Sweden because it specifically permits copies to be “distributed” and certain organizations may also “communicate” copies to those with a disability

3.6 Distribution to organizations

3.7 Export to individuals

3.8 Export to national organizations

- Exceptions are often clearly limited to providing assistance to a person with a print disability only. Where the action being undertaken by the person or organization in the source country does not have this as a direct or certain outcome, because it goes to an organisation rather than a print disabled person in another country and that organization is not then bound by the law of the source country regarding the end destination because it is subject only to complying with the law in the destination country, then the action being taken may not meet this criterion.

- Exceptions may be limited to bodies that are designated by some sort of official recognition procedure in a particular country or may be simply limited to actions undertaken only by organizations entitled to act under the exception. Organisations in other countries will not generally satisfy these criteria because they will have been neither designated nor have any entitlement to act in the source country, so passing accessible copies to them could go beyond the scope of the exception.

3.9 Export to international organizations

3.10 Import by individuals

- Importation is only permitted where the copy being imported was made under an exception in the source country similar to that in destination country. Provision of this type seems to exist in Denmark, Japan, Macau and Nigeria

- Importation is only permitted for importation of a copy for personal use when it is imported in personal baggage. Provision of this type seems to exist in Paraguay and Peru

3.11 Import by organizations

- Copies cannot generally be imported for the purposes of distribution where they have been made without the permission of the copyright owner, and this would apply to copies made under an exception in the source country. (The same restrictions on importation often also apply where copies have been made with the consent of the copyright owner.) Were an organisation to import an accessible copy, it would then seem impossible to subsequently supply it to a visually impaired person legally by any means that involves “distribution”. Countries where this situation might arise include Azerbaijan, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Republic of Moldova, Russian Federation and Singapore.

- Copies are defined as “infringing copies” if the person or body that made them could not have made them in the destination country, and such copies cannot be legally imported, except for private and domestic use. Even if the copies have been made legally under an exception in the source country, it may be argued that they were made by a person/body unable to make them in the destination country as the person/body in the source country is not entitled to enjoy exceptions in the destination country as they are operating under the law in place in the source country. Countries where this situation might arise include Belize, Canada, Fiji, Ireland, Republic of Korea and the United Kingdom.

- Only certain types of accessible copy can be made under the exception in the destination country so it seems unlikely that other types of copy could be imported by organizations. A country where this situation might arise is Iceland as only Braille copies can be made under the exception in Iceland.

- Australia and Denmark – it may be possible to import copies of a type that would have been permitted to be made and by a body permitted to act under the exception in the destination country

- Bulgaria – imports may be possible if not in “commercial quantities”

- Canada and Estonia – imports may be possible so long as the quantities involved are small enough and so do not count as importation for sale, distribution or other dealing

- Italy – imports may be possible so long as they are not done for gainful intent and no more than 50 copies are imported

- New Zealand – imports may be possible so long as the importing organisation is a body prescribed by regulations in New Zealand, the copy was made under an exception in the source country and is of a type that could have been made in New Zealand

- Nigeria – it may be possible to import copies so long as copies are ones that could have been made in Nigeria and, for sound recordings, the importing organisation is approved in Nigeria

- USA – imports of Braille copies and a very small number of copies for non-commercial loan may be possible

- Where an exception in the destination country does not clearly provide for distribution of accessible copies, it may be that the importation of such a copy by an organisation is not illegal, but it may then be impossible to legally supply it to visually impaired people. Countries where this situation might arise include Brazil, Dominican Republic, Mongolia, Panama and Spain.

- Where an exception in the destination country only permits certain types of accessible copy to be made, there would be no defence to infringement for distribution of other types of copy, so importation of copies that could not have been made in the destination country could be a problem. In China and Indonesia for example only Braille copies can be made under the exception and so it seems unlikely that an organisation could import and supply other types of accessible copy to visually impaired people.

- A similar situation might arise where there is a requirement in the exception in the destination country that only a work that has been lawfully published can made in an accessible format. Importation of accessible copies of a work that has been published in the source country but not in the destination country might not be possible.

- Where an exception in the destination country permits distribution of accessible copies in general rather than only distribution of copies made under the exception it seems more likely that an organisation would be able to import accessible copies. Slovenia seems to be an example of a country that has an exception that permits distribution of accessible copies without them necessarily being copies made in Slovenia. On the other hand, Slovakia seems to be an example of a country that has an exception that permits reproduction for the purposes of distributing only those copies to the end beneficiaries and so distribution of copies not made under the exception in Slovakia may not be permitted.

3.12 Export/import of intermediate copies

- Australia: Provision on intermediate copies is limited to activity that is solely for the purposes of doing what is permitted under the Australian exception so export of intermediate copies may be unlikely to be legal as it would not be to an organization that can enjoy the Australian exception. Import of an intermediate copy may be possible so long as it is to an organization permitted to make such a copy in Australia.

- France: No provision has been found regarding intermediate copies made by organizations making accessible copies under exceptions. The publishers’ electronic copies that may be required to be stored centrally under the exception seem unlikely to be transferable to other countries.

- United Kingdom: Provision permitting loan or transfer of intermediate copies would probably not permit their export as an organization in another country is not acting in the UK and so does not have the required entitlement to make accessible copies under the UK exception before it can receive an intermediate copy. Importation only seems possible where the copy is not an “infringing copy” and, as explained above, this includes the test of whether or not the person or body that made the intermediate copy could have made it in the destination country.

3.13 Exhaustion of rights

CHAPTER 4

CASE STUDIES SHOWING COPYRIGHT PROBLEMS

4.1 Introduction

4.2 Production and national dissemination of accessible copies

Case study 1: Mozambique

Libraries in general are very few in Mozambique and there are no libraries at all for visually impaired people. Some material does exist in Braille, but it is unlikely to have a local source. The beginning of a greater recognition of the needs of visually impaired people is, however, emerging. For example, in June 2006 a currency with a change in the face value was launched and it is possible to find information about this in Braille.

At this point in time there is, therefore, no particular concern in Mozambique about any problems due to copyright with the production and dissemination of accessible formats of copyright works for visually impaired people. At some point in the future as recognition of the needs of those with a visual impairment continues to grow it does, however, seem very likely that copyright will become a problem.

Case study 2: Malawi

Moses, a visually impaired secondary school teacher in Malawi, says that it is difficult to access books in a suitable format. He is able to obtain some material from the Montfort Education Centre for the Blind. But he does not have much choice about the books he can use. He has to make do with the limited amount of material available and structure his teaching round that.

Chancellor College of the University of Malawi has modern computer equipment with scanners so that it is possible for blind students to have books read to them using screen reading software for scanned text. The equipment could also be easily used to transcribe books into Braille, which some students would find more useful to support their studies. But, although there has been investment in this multipurpose and up-to-date equipment, it is currently underused because Braille transcription activities are not taking place for fear of contravening copyright law.

However, there is recognition in Malawi at a high level of the needs of visually impaired people in the education system. In the absence of specific copyright exceptions for the benefit of visually impaired people, the Ministry of Education, through the Director of Education responsible for Special Needs Education, is responsible for negotiating permission to transcribe books into Braille. As the Malawi Institute for Education is the main publisher of core texts for primary and secondary education, the negotiations are in-house and permission is given by the Minister of Education normally after no more than about three months.

Problems do, however, occur where books are privately published, and the situation could be exacerbated if planned changes to the printing of textbooks go ahead with this being done in the future under Ministry contract with private publishers. Moreover, publishers have been reluctant to make electronic copies of their works available to the Director responsible for Special Needs Education so that Braille copies can be produced as they fear that this might undermine their business models. They fear that the Directorate will make money out of electronic copies so that there should be a payment for supply of such copies.

Case study 3: Chile

The Library for Blind People of Santiago de Chile61 is a non-profit making organization dedicated to the conversion of written material into audio tapes. These are used by visually impaired people for entertainment, cultural and/or educational purposes. In the educational area publishers have authorized some audio taping of books for the tapes to be put in the Congress National Library to help blind students from all of the country. But Chilean copyright law does not support the activities of the Library for Blind People, or other libraries. Other agreements with authors and publishing houses have been difficult to reach, sometimes due to difficulties in tracing the right person, so that in many cases legal activity to make accessible copies for visually impaired people is not possible. It is not even possible to charge a small amount to cover the costs of the audio tapes that are made as this would be deemed to have a commercial purpose.

Other exceptions to copyright in Chile offer no real assistance with the making of accessible copies. There are no specific exceptions applying to libraries. Also, there is no private copying exception which could permit visually impaired people to create accessible copies for personal use. Although there is an exception permitting use of copyright works in educational places, this cannot be relied upon by libraries such as the Library for Blind People of Santiago de Chile as the library does not function as an educational place.

Although problems for those wishing to assist visually impaired people by making accessible copies are therefore very significant in Chile, there are signs that changes in the law might be forthcoming in the future. Early lobbying for adjusting the balance of exceptions in the copyright law in Chile has not been successful. But in 2006 the Minister for Culture, Mrs. Paulina Urrutia, speaking of a new project looking at a number of issues in the copyright area, has emphasized the necessity of having a well balanced copyright law.

Case study 4: India

The Copyright Office at the Ministry of Human Resource Development, Government of India, has been conducting a consultation exercise on updating copyright law to keep pace with developments at national and international level, particularly with the rapid advance of technology62. This consultation is accompanied by a number of proposed amendments to copyright law in India. One of the proposals is an amendment to Section 52 of the Copyright Act, 1957 (which covers certain acts which are not an infringement of copyright) to provide for the needs of people with a disability. The proposal would make the following activity possible without infringing copyright:

“The reproduction, issue of copies or communication to the public of any work in a format, including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability that prevents their enjoyment of such works in their normal format.”63

In India, there are a number of not-for-profit bodies that are actively working for the visually challenged. Seven of these organizations have been collaborating on the problems that copyright restrictions impose on their activities and what changes to the law would be desirable. The seven organizations, which have worked together as the Publication Access Coordination Committee (PACC), are as follows:

    - Blind Graduates’ Forum of India, Mumbai

    - Blind Persons’ (Men's) Association, Mumbai

    - Dr K M Shah Self Vision Centre, Ramnarian Ruia College, Mumbai

    - Helen Keller Institute for the Deaf and Deafblind

    - Indian Association for the Visually Handicapped

    - National Association for the Blind, India

    - Xavier’s Resource Centre for the Visually Challenged, St Xavier’s College, Mumbai

These organizations have now submitted a joint response to the Copyright Office consultation64.

PACC has gone into considerable detail about why there needs to be an exception to copyright. For example, it has highlighted the difficulties encountered when seeking permission from copyright holders to make material available in alternative formats, especially when those approached for permission are unfamiliar with the needs of visually impaired people. PACC has, however, also acknowledged India’s obligations to comply with requirements in the Berne Convention regarding exceptions and limitations to copyright. PACC also addresses possible concerns that publishers might have with changes to the law to meet the needs of visually impaired people.

PACC does, though, query whether the amendment to copyright law proposed by the Copyright Office is the right approach. The Copyright Office’s proposal restricts activity to the making of only those accessible formats specially designed for people with a disability. PACC on the other hand feels that restricting the exception to copyright this way would deny disabled people the opportunity to benefit most effectively from the solutions that technological advances have brought, and could in the future bring, to their problems with access to the written word. The wording of the exception to copyright proposed by PACC does not, therefore, require an accessible format to be “special”, but, rather, seeks to limit the exception by clearer restriction of the type of person who can benefit from any accessible copies made under the exception. The PACC proposal is as follows:

“The adaptation, reproduction or issue of copies, or communication to the public of any work in any format, including sign language, specially designed or not, but intended exclusively for the use of persons suffering from a visual, aural or any other disability that prevents the perusal or understanding or comprehension or enhanced enjoyment of such work in their normal form.”

PACC has also identified the benefits of an obligation imposed on publishers to provide an e-copy of their work, perhaps to a central repository, and the usefulness of provision that would permit importation of accessible formats made in other countries.

At the time of writing this report, it is not known what other stakeholders have said on this issue in their responses to the consultation exercise. The final decisions made by the Government of India will, of course, have to take into account all the views that have been received, but this case study does illustrate some of the different ways in which copyright exceptions might be limited, and the usefulness of a well-informed debate in making decisions on the final form of any legislative provision.

Case study 5: Philippines

Resources for the Blind65, a non-profit, non-government organization seeking to produce materials for blind readers in the Philippines, has been campaigning for some years for an amendment to copyright law to underpin the making of accessible formats. With political backing from a Congressman, the campaign came near to a successful solution at one point, but the death of that person has inevitably delayed progress. During the years of campaigning, though, Resources for the Blind has revised and developed its ideas about the needs of visually impaired people in the Philippines. It now recognises that, as well making accessible copies in the Philippines, it would be very useful to have access to the accessible formats already in existence in other countries. This cannot, of course, be delivered by legislative change in the Philippines alone. Resources for the Blind is therefore now backing an agreement or arrangements at an international level.

In the absence of a legislative solution in copyright law in the Philippines, some activity to make accessible formats is possible under agreements with publishers. The Department of Education has permission to reproduce the textbooks that it purchases in Braille. But Resources for the Blind has not been able to get a blanket agreement to reproduce copyright material in Braille. There is as yet no solution in sight. Any solution is likely to need to address the publishers’ general reluctance to grant permission to Braille producers to reproduce published material because of concerns about possible misuse of any digital copies made.

Case study 6: Germany

A new provision was introduced into German copyright law in 2003 which helpfully permits the reproduction of a copyright work to make any accessible format for a disabled person. This recognition in copyright law of the needs of visually impaired people has been welcomed by many who have been assisting these people with access to the written word. The new exception in many ways formalised activity making Braille copies that had been undertaken by some special libraries in Germany for several decades. Arguably the activity was impliedly licensed by right holders as no-one appeared to be objecting to the activity. Although the new exception to copyright is helpful in clearly legalising the activity that was formerly taking place with no clear legal basis, the new exception makes remuneration to the author obligatory. A payment of 12 Euro must now be paid for each title produced regardless of the type of accessible copy. Thus the charge applies to Braille copies as well as any other format.

An exception coupled with remuneration is not clearly incompatible with the obligations that Germany must comply with under international and EU law and so it is not necessarily wrong for the exception to be formulated this way. However, the new exception coupled with the required payment for any type of accessible copies, including those in very specialised formats such as Braille, is reducing the number of works that the special libraries can put into accessible formats given their limited resources. The effects of the new exception and so perceptions about copyright are therefore considerably more negative than might have been the case if funding issues had been handled more sensitively.

Case study 7: Lithuania

The Lithuanian Library for the Blind (LAB)68 has been very active in producing talking books for the blind since 1962 and more recently has started producing books in Braille and large print to meet the needs of those who need them for education, teaching or scientific research purposes. This activity can take place under the exception to copyright so long as the works have already been published and it is undertaken non-commercially. At the moment, about 300 talking book titles are produced each year, 30 titles of books in Braille and 17 titles of talking magazines, as well as ongoing activity to digitize old talking books. However, this still amounts to a tiny proportion of all reading material published annually in Lithuania so LAB has been working on ways to maximize the number of titles it can produce in accessible formats given its limited resources.

By far the easiest and fastest way to produce a book in Braille is to work from an e-text file. When LAB started producing Braille titles in 1999, it approached several Lithuanian publishing houses seeking e-texts from which to work. Publishers and authors are not obliged by law in Lithuania to hand any electronic file they posses to LAB, but many do so under agreements with LAB, persuaded by LAB’s assurance that only Braille copies will be made and that the number of such copies will be small.

However, in some cases publishers feel insecure about providing e-texts even with these assurances, fearing that the e-texts will be misused and their commercial interests may suffer. In some cases, publishers have therefore refused to provide e-texts or required LAB to contact the authors too. In other cases a publisher has not archived the published work themselves as an e-text so they have nothing to hand over. In addition, in some cases the format of the publisher’s e-text is not appropriate for easy conversion to, say, a Braille copy. In all of these cases, LAB must make its own e-text as a preliminary stage in producing an accessible format, by keyboarding or scanning the words from the copy of the work printed on paper. This is a time consuming and expensive process which could be avoided completely if there were an archive of all e-texts from all the publishing houses in the country with the e-text being a file appropriate for alternative format publishing to which LAB has access.

More recently LAB has sought permission from publishers for the e-texts to be made available for reference reading by blind professionals using computers with speech synthesizers. Although permission is sometimes forthcoming, the problems indicated above regarding agreements to receive e-texts for Braille production also apply to this activity.

Case study 8: USA

A blind graduate student, calling herself Kestrell, has recently finished a Masters thesis. She has created and maintained a website as a resource for visually impaired readers69. She has herself found blogs written by other blind computer users as a useful source of advice on the technology used by those with a visual impairment. Her experiences as a visually impaired student has led her to catalogue a number of concerns that she has encountered, some of which are included in this case study.

Special formats and special equipment

Where special formats are required to be made under an exception, or agencies making accessible copies for visually impaired people choose for other reasons to use special formats, there seems to be a danger that each agency will use a different format, albeit it might be in some way related to a common standard like DAISY. Each special format may require special software or a different hardware reader. Although visually impaired students may be able to get equipment needed to access special formats on long term loan, many of the models are of low quality and often the student has difficulty finding other knowledgeable blind computer users from whom they can obtain advice about the technology. Kestrell has encountered these problems with her study material, and also insufficient functionality to meet her study needs, such as the ability to do in-text searches and cut and paste excerpts and quotes. She claims that as an undergraduate 99% of the time she chose to purchase and scan her own books in order to have full access to the text. She questions whether it is right for blind readers to expect the same level of functionality as sighted readers or whether copyright should be able to restrict a blind reader’s ability to use text compared to what is possible for a sighted reader, i.e. what is the right balance between functionality and copyright protection?

Choice of electronic file

Almost any electronic format other than plaintext and RTF can be a problem according to Kestrell. PDF files can be produced to be accessible to visually impaired people, but many of those producing such files do not seem to do this, perhaps because they have never received appropriate instruction. Fear of infringing copyright may also lead people to choose security settings, both for PDF files and commercial formats, that lock out screen readers and Braille displays. Kestrell found her undergraduate university producing PDF course documents which were inaccessible to her due to high security settings. When she approached the head of the library, she was told that it would be illegal to post the documents any other way because they would then be able to be copied. She has also encountered problems of electronic documents that are such poor scans that OCR, the process by which images of text are converted to alphabetical text which a screen reader or Braille display can read, does not enable them to be used.

End-user licence agreements and swapping accessible files with students abroad

Kestrell is concerned about the number of times she has had to sign copyright agreements with the same agency in order to continue using their service to obtain accessible formats. She is concerned about the underlying message that as a digital format user her intentions are always treated as suspect. She has received requests from blind readers in Canada and India for accessible files she has. However, she is very conscious of the end-user licence agreements she has signed with agencies that have supplied her with accessible copies and is careful to respect these by not swapping e-texts or e-books with anyone from another country.

Kestrell is, though, concerned that whether or not it is, or always is, illegal to exchange electronic texts with people in other countries is far from clear. She believes that uncertainties and concern about copyright violations has meant that blind students have sometimes been denied access to electronic versions of course material due to fears that they will be tempted to give the electronic versions to others. She has even found publishers and lawyers who do not seem to be able to give clear answers on the legality of the exchange of accessible electronic texts with those in another country.

4.3 Production and international dissemination of accessible copies

Case study 9: Chile

The Library for Blind People of Santiago de Chile70 claims to have neither imported audio tapes made in other countries nor exported the material it produces to other countries because it does not want to do anything which might give rise to trouble with copyright. The Library has not had the opportunity to make agreements with publishers and other copyright owners to permit the sending of accessible copies it has made to another country and so avoids international shipping of titles. This is despite the many requests for titles in accessible formats that the Library has had from blind people in other Latin-American countries. The Library has had to decline these requests with great regret. The Library recognizes that not only would cross-border exchanges of accessible material help visually impaired people, but also that it would be beneficial to the activity that the Library can undertake. Charges could be made for the material provided to visually impaired people in other countries and this would have a beneficial impact on the resources the library has for making more accessible material.

Case study 10: The Netherlands

Dedicon Netherlands71 is responsible for production and development of accessible information for people with a print impairment. Dedicon also carries out a number of coordinating tasks and services for the Alternative Reading Libraries in the Netherlands. Dedicon has for sometime been successfully producing alternative format leisure and study material for use by people with a print disability in the Netherlands. It is also able, subject to certain conditions, to export this material to libraries for the print impaired in other countries. This activity is underpinned by agreements with publishers and legislation as explained more fully in Chapter 5.

The material produced by Dedicon is primarily copies of Dutch language books and magazines published in the Netherlands. However, increasing numbers of Dutch students with a print disability are requesting access to material in English which already exists in a suitable format in libraries abroad. In the past Dedicon has often been able to obtain accessible copies in an analogue form, such as talking books recorded on cassettes, from other countries through inter-library loans. However, the change to digital accessible copies, such as copies in the DAISY format, has led to more uncertainty and caution about the legality of this sort of activity. In the absence of international regulations or comprehensive agreements with publishers, some libraries fear that publishers might bring claims for infringement of copyright where accessible copies are loaned across borders.

The result is that often the only way that Dedicon is able to supply the needs of students with a print impairment in the Netherlands is to make the accessible copies itself even when the copies already exist in a suitable format in other countries. The effect of this is that Dedicon spends time and uses its scarce resources to repeat work converting material to an accessible format when that work has already been undertaken in another country. Given that one of the important purposes of the DAISY-CD was to have a common international standard for accessible copies across many countries, including to facilitate international library loans, this is of particular concern. The DAISY format, which has been developed using digital technology to give visually impaired people the benefits of high quality copies with good navigation, could have made loans between countries easier. Instead the spread of

DAISY-CDs is leading to new difficulties and concerns for Dedicon and its partner libraries in other countries.

Case study 11: Canada

The CNIB Library72 in Canada has a long tradition of assisting people with a perceptual disability by providing material in alternative accessible formats. Canadian copyright law provides helpful provision to facilitate this which is discussed in more detail in a case study in the next chapter. However, the sort of problems that the Library has encountered with regard to export of accessible copies to other countries and import of accessible copies made elsewhere into Canada illustrate problems likely to be encountered in many countries.

Users of the accessible formats created as a result of activity under the exception to copyright in Canada must fall within the scope of the definition of perceptual disability in the Canadian Copyright Act. This will also be the case where the accessible material has been placed in the CNIB Digital Library. CNIB Library clients who travel or reside outside of Canada temporarily may continue to access online works by logging into the CNIB Digital Library via an authenticated IP address. However, individuals and patrons of libraries in other countries are denied access to the CNIB Digital Library because there is no way to ensure that a person has a legal right to use the alternative format work in his or her country.

A number of other countries do, of course, also have exceptions to copyright that permit the making of accessible copies for disabled people and in some cases the exceptions may even have a similar scope to that in Canada. However, some differences in terms of types of work that may be copied, accessible formats that can be made and the eligibility criteria for a disabled person to be able to use the accessible formats made are invariably present. For example, the definition of perceptual disability in the Canadian Copyright Act includes people with an impairment relating to comprehension, whereas exceptions in other countries often only cover people with physical disabilities. With the varying scope of national exceptions, extending access to its Digital Library to patrons of trusted partner libraries in other countries remains difficult for the CNIB Library.

Other activity crossing borders involves seeking permissions from copyright owners where the CNIB Library’s experiences are worth noting. The CNIB Library has found international permission seeking both complex and resource intensive. Publishers are also not necessarily well-served by the lack of a standard process for alternative format producers to seek permission. At the moment, the language of the requests varies widely and can be confusing to publishers, especially where an organization in one country requests permission to use a work in an alternative format already produced by a different organization in another country.

Situations where the CNIB Library has encountered the need to seek permissions even though there is an exception to copyright in place in Canada are as follows:

- The CNIB Library collection includes commercial online e-texts and audio book services. Extending access to these across borders is complicated by product-specific licences.

- The CNIB Library sometimes acquires works in alternative formats from a foreign producer and must apply to the copyright owners for permission, either where the foreign producer is limited by its domestic copyright legislation or by its own agreements with publishers from supplying copies in response to an overseas request.

- Where foreign libraries wish to acquire copies or a master of a work in an alternative format from the CNIB Library, they are asked to show proof to the CNIB Library of copyright clearance or legislative exception in their own countries. The CNIB Library may also need to obtain the permission of the publisher in Canada if the master was produced using a file obtained through an agreement with a publisher.

Some of the reasons that the CNIB Library has encountered that make seeking permission particularly complicated are as follows:

    - It may sometimes be difficult to identify the right holder in a particular jurisdiction. In particular, where there are subsidiary sales agreements between publishers, it may be unclear whether permission is required from the originating publisher, from the subsidiary rights holder in the country where the alternative format work has been produced, or the subsidiary rights holder in the country where the work is being acquired.

    - In some cases an alternative format work has been produced from an edition that is not available in the country where it is being acquired, but a parallel edition has been produced in that second country. The subsidiary rights holder may have adapted the original work to appeal to readers in a different market, but the differences may be quite minimal so that there is a desire not to expend additional resources making an alternative format of the parallel edition, but use the alternative format of the foreign edition. It is then necessary to identify which are the right holders from which permission is needed for acquiring the alternative format of the foreign edition.

Negotiating all these complexities and difficulties is difficult even for a body like the CNIB Library which has considerable experience of copyright issues. The publishers approached for permission are also not necessarily well served by the complexities. The CNIB Library is aware of a least one large publisher which would like a streamlined approach to permission seeking.

Case study 12: USA and Ireland

Recording for the Blind and Dyslexic® (RFB&D®)73 has its origins in the US after the end of World War II when the New York Public Library's Women's Auxiliary started recording college textbooks for returning servicemen who had been blinded in combat. Today the RFB&D is the nation’s premier educational library hosting the world’s most significant collection of recorded textbooks in its Princeton, NJ-based master library and supporting 29 recording studios across the US. RFB&D serves 141,660 members, distributing 258,918 titles in 2005.

As far as activity in the US is concerned, RFB&D has very few problems. It qualifies as an authorized entity under the exception to copyright in Section 121 of US copyright law and as such can produce and distribute content in specialized formats to blind or other persons with print disabilities, such as dyslexia, in the US. However, RFB&D has been advised that the copyright exception applies only to distribution in the US as the exception cannot have an extraterritorial effect. Distribution in other countries outside the US would be governed by the legislation of the individual country, not by US legislation. Although some countries may allow import, RFB&D is not authorized under existing US copyright law to export titles to those countries.

RFB&D is nevertheless happy to try and meet the needs of the international community and is actively exploring all strategies for doing so. This includes the possibility of sale of submasters of digital books. As an interim measure, RFB&D has also begun to look at ways of establishing supplies to people in other countries by distributing digital books through interlibrary loans. RFB&D has also promised that until June 30, 2007, when available, it will convert new digital titles to analogue copies on cassette upon request from international members.

RFB&D recognizes the benefit to all of a global library approach to serve people with a print disability and supports a solution to improve supply to international members. RFB&D has not yet, however, approached individual publishers for permission to distribute accessible books abroad for several reasons:

- Resources are currently being directed as a priority to the process of making the transition to an all digital collection of titles.

- With 30,000 digital titles in the RFB&D collection, it would take very significant resources to seek out individual permissions.

- As requests from foreign students are for material that is almost always needed very urgently for study purposes, by the time a request from a foreign student or agency is received, there is insufficient time to obtain permissions to meet the identified need.

Organisations in a number of countries have reported concerns about the lack of availability of digital books from RFB&D given its very comprehensive collection compared to those in their own countries. Obtaining material from RFB&D which already has accessible copies of requested material in a suitable format would avoid duplication of effort and expenditure of scarce resources. Once such organisation is the National Council for the Blind of Ireland (NCBI)74. NCBI has encountered similar problems when trying to borrow DAISY books from the RNIB in the UK which no longer offers international loans of audio cassettes. NCBI is, however, able to borrow 4-track and 2-track cassettes and Braille copies from the Library of Congress in the US.

Case study 13: New Zealand

The Royal New Zealand Foundation of the Blind (RNZFB)75 has an accessible format library and production facilities for making audio, Braille, electronic text and large print materials. The RNZFB has been making audio recordings since 1966 and during this long period about half of the output has been of books published outside New Zealand. Audio copies have been traditionally circulated to users on cassette, but the RNZFB has more recently transitioned to production to the DAISY standard. The RNZFB has about 5,500 borrowers of its accessible material.

With the introduction of digital formats and DAISY in particular, it is technically very much easier and quicker to obtain audio recordings from overseas. Also, where it is possible to access electronic files, Braille production is easier. As a result of the advantages that digital technology brings to the making of accessible formats, the RNZFB sees itself refocusing the work of its recording studios more on material published in New Zealand.

From the perspective of the RNZFB, the improvements offered by a move to more use of digital technology has also driven huge improvements in international cooperation relating to the production of alternative formats. The last one or two years in particular have been significant in this respect. This cooperation does, of course, also make economic sense as libraries working for blind people are invariably under-resourced.

Activity in New Zealand undertaken by the RNZFB falls within the scope of the exception to copyright in New Zealand copyright law. The RNZFB is a body that has been prescribed as required by the legislation in order to benefit from the exception. The exception is fairly broadly drawn and is very helpful to the RNZFB so long as it is careful to make accessible material available only to people with a print disability. The exception does not require remuneration to be paid to right holders.

The main problem for the RNZFB is, therefore, where it wishes to import material from another country. As New Zealand is a relatively small country, there would be considerable benefits to the RNZFB if it were easily able to import accessible copies made in another country. There are a number of countries which are likely to have already expended considerable resources on producing accessible copies of titles that are wanted by print-disabled people in New Zealand. The RNZFB would therefore in particular like to see legislative provision that would enable interchange of material between New Zealand, the UK, USA, Canada and Australia. At the moment, the legality of export and import of accessible copies is either not clear or clearly illegal, which means that they can only be imported by the RNZFB if rights can be cleared with publishers.

The RNZFB does have quite a lot of experience of trying to clear rights to import material produced in another country. Indeed, it has found that some publishers are excellent at responding positively to permission requests within days. However, there is no consistency and other publishers take a very long time to respond or do not reply at all. To illustrate this point, in the 2005-2006 financial year that ended on 30 June 2006, the RNZFB selected 103 titles in the DAISY format that had been produced by the RNIB in the UK for conversion to 4-track cassette. (The RNZFB is still running a 4-track cassette library whilst finalizing circulation by post on CD Rom or internet delivery of its digital library collection.) The RNIB had already succeeded in obtaining worldwide rights for 65 of these titles leaving 38 titles for which copyright clearance for this activity was needed. After writing to copyright owners between January and March 2006 seeking permission, this was obtained reasonably promptly for 10 of the titles, six being from the same publisher. All of the remaining 28 copyright permission letters were still unanswered as of 26 October 2006.

All of this makes it more difficult for the RNZFB to know what titles it might be able to offer to its users and when these might be available. In order to make obtaining permission easier, the RNZFB has tried hard to build up good relationships with people in the copyright clearance sections of some publishing houses as this increases understanding and so improves the speed of response. However, relationships can be too easily broken when personnel at the publishing house change and then it may take a long time to reach the same level of understanding again.

CHAPTER 5

CASE STUDIES SHOWING EFFECTIVE SOLUTIONS

5.1 Introduction

5.2 Production and national dissemination of accessible copies

Case study 1: Kenya

Recognition of the needs of visually impaired people in Kenya was given a significant boost when a librarian in Kenya went blind in the late 1990s. He remained in employment after receiving rehabilitation training, but, more significantly, the needs more generally of visually impaired people unable to read the printed word were subsequently considered at a national level. The Kenya Society for the Blind (KSB) and the National Library Service in Kenya (NLS) discussed the possibility of developing ‘Braille Corners’ in Public Libraries in Kenya. As a result of a grant from the Department for International Development in the UK, managed through the British Council, the UK Royal National Institute for the Blind was able to run workshops in Kenya to familiarize NLS Management and Librarians with the needs and requirements of visually impaired people. Then, Braille Corners housed in Public Libraries at Provincial and District level across Kenya began to be rolled out.

At the present time there are 42 Braille Corners serving over 10,000 registered users. Books can be borrowed by the registered user visiting the library, which provides other facilities for users, in particular a Perkins Brailler. Where a registered user is unable to visit the library, a family member may collect books for them so long as the family member can present the registered membership card.

The Nairobi Main Library has 900 titles available in Braille, large print and audio and the stock increases each year. This Library has developed additional services for schools. There are 15 schools within 200km of the library that benefit from an outreach service under which a new stock of accessible books are delivered to each school each month and the old ones are retrieved and recycled to other schools where there are visually impaired children.

Case study 2: eIFL-IP and Lesotho

EIFL.net is an independent foundation that leads, negotiates, and advocates for the wide availability of electronic resources by library users in transition and developing countries. In 2005, eIFL.net launched eIFL-IP78, aimed at the library community in eIFL member countries to build capacity and expertise about intellectual property issues in those communities. Underlying the work of eIFL-IP is concern that lack of awareness about IP, and particularly copyright, amongst the library community can lead to the introduction of unfair laws, particularly where better-resourced right holder interests are able to hold national seminars and conferences to raise the profile of issues, such as piracy and enforcement, of concern to them. The work of eIFL-IP is therefore to raise awareness about IP and to use the eIFL network to create national and regional expertise in copyright issues for libraries. EIFL-IP also monitors the latest developments in the relevant areas of IP, and provides tools, resources and specialist advice about IP for the library community.

EIFL-IP has engaged in a number of copyright related campaigns, and supports the investigation of copyright issues affecting blind and visually impaired people within the framework of the WIPO Standing Committee on Copyright and Related Rights. It knows that it is difficult to get information in many developing countries about copyright which may restrict access to alternative format material for visually impaired people because of a lack of awareness of the issues and because the focus may be on the day-to-day work in providing library and information services in often difficult circumstances. However, when some of these other problems have been resolved, copyright issues that have remained unaddressed then come to the fore, but by that time it may be too late to find satisfactory solutions.

This is why eIFL-IP sees its work to raise awareness about copyright as very important so that copyright solutions to any problems can be built in to the law or otherwise, as the provision of accessible copies for visually impaired people is increased. Raising awareness can be difficult where there may be a lack of library capacity and where library associations, that in other countries might take the lead on copyright issues, are not in a position to do so. Therefore one of the most important jobs for eIFL-IP is to raise awareness amongst librarians in developing countries about the relevance of copyright to their activities and how fair and balanced solutions are needed to, amongst other things, ensure that visually impaired people can have access to the printed word. eIFL-IP has trained more than 90 librarians from 55 developing and transition countries in three regional workshops on copyright and related issues. The workshops were held in Uganda in November 2005, Estonia in December 2005 and Ukraine in May 2006.

EIFL-IP also provides individual advice through the network that has been established. One recent example of this involves the library of the National University of Lesotho (NUL). Lesotho is ranked by the UN as a Least Developed Country and has one of the highest rates of HIV-Aids infection in the world. NUL started taking blind students about six years ago. When visually impaired students come to the library with a request for a book they would like to read, the book is checked out to the Special Unit where it is transcribed into a Braille copy for that student. There is no exception to copyright specifically permitting such assistance to visually impaired people, but there is a broad private copying exception in copyright law which should cover transcription to provide a personal copy in response to a request from a student. However, eIFL-IP is aware of the limitations of relying on such exceptions alone which may restrict re-use of the material by the library for the benefit of other blind students. eIFL-IP has highlighted the wealth of information available in Braille and other accessible formats, in particular digital, in other countries and the advantages of avoiding duplication of effort if material is shared, but that in order to benefit from the sharing, suitable provision needs to be made in copyright law in Lesotho.

Case study 3: UK

Before 2003, UK producers of accessible copies for visually impaired people had to seek permission from right holders for every title they wished to transcribe into an alternative format. The National Library for the Blind (NLB)79, which is just one of the organizations making accessible formats in the UK, was making mostly Braille books for loan or sale, mostly of the more readily available popular end of the market, that is of material that sighted people could obtain readily. As well as being lengthy, the process of obtaining permission often gave rise to other problems. Some of these problems were as follows:

- Referral of the request from the publisher to another person was common, for example referral to literary agents, other publishers and authors. In some cases no-one was sure who actually held the rights.

- Sometimes there was a complete misunderstanding about what the NLB was trying to do, and also confusion if a publisher had already given permission to another alternative format producer for a different format.

- On some occasions publishers seemed to simply ignore permission requests despite several reminders.

- There was inconsistency about payments, with most giving permission seeking nothing, but a few asking for payment.

- Collections of short stories and poetry could be particularly difficult with some publishers insisting that permission should be sought from all the contributors, a scenario which amounted to a deterrent to transcribe such material.

- Permissions could include various and differing restrictions, such as on geographical extent of loans, number of copies that could be made and time before permission would need to be sought again.

Some of these problems had been eased for some material before 2003. Some of the larger publishers had started to offer blanket permission, but many problems still remained and the process of seeking permission was a huge administrative burden for the NLB and other accessible format producers.

Legislative change to copyright law in the UK, which came into force in October 2003, has greatly eased the situation for the NLB and other producers of alternative format material which are making multiple accessible copies of copyright works. The legislative change introduced an exception to copyright to enable such activity, but at the same time leaving it open to right holders to set up a licensing scheme to override the exception so long as the licensing scheme is not more restrictive in what is permitted than the exception. The Copyright Licensing Agency (CLA) has set up a licensing scheme covering the making of alternative formats of books and journals80. (A separate scheme operated by the Music Publishers Association (MPA) exists for sheet music81.) This scheme is in some ways more generous about what is permitted than the exception and benefits right holders and alternative format producers in other ways too.

One of the conditions of the licensing scheme is that information about all material in an alternative accessible format must be entered onto the Revealweb database, which is available via the internet82. This means that those needing a particular type of accessible copy of a particular work are able to find out whether it already exists and, if so, which organization has produced it. The database also allows those who are planning to produce an accessible format to check what is already in production so that they can avoid duplication of effort. Revealweb also helps right holders who wish to know what additional access to their copyright works is taking place. Revealweb gives the CLA in just one place access to information about what accessible copies have been made. Revealweb is supported and managed by RNIB83 and NLB with funding from other organizations.

Building on the legislative changes in the UK, a government-backed (but not

government-funded) Feasibility Project has recently been initiated to investigate the potential for bringing about a significant increase in accessible book products for blind and partially sighted people. The Project has partners from the RNIB, NLB, right holder organizations including the Publishers Association and the Publishers Licensing Society and other trade bodies including the Booksellers Association and Book Industry Communication. All the partners are committed to work on the Project as they support the overall objective of increasing the availability of accessible products. The aim of the Project is to investigate the extent to which material which is published can be made available by publishers to the RNIB in digital form for conversion into large print, Braille and audio accessible copies. Ideally this will include making content in digital form available before publication where there is likely to be demand for accessible copies so that accessible copies can be ready by the time of publication. It will include looking at the feasibility of bringing these accessible products into mainstream bookshops as well as delivering them to visually impaired people through existing distribution methods and new online services.

Case study 4: Brazil

Brazilian copyright law permits Braille and other accessible formats for visually impaired people to be made so long as the activity is non-commercial. The Dorina Nowill Foundation for the Blind84 is a charity which acts under the exception to copyright to produce in particular Braille and audio-books. It is probably Latin America's largest producer of Braille books and is the largest Brazilian producer of audio-books. As well as supplying books to visually impaired people in Brazil, the Foundation produces an audio-magazine which is sent to Portuguese-speaking visually impaired people in Portugal, the United States of America and France.

Accessible copies are distributed by the Foundation in Brazil either direct to visually impaired people known to the Foundation, or indirectly through other organisations. For accessible copies in an electronic format, distribution is carefully controlled with the recipients agreeing a contract. The contract does not permit further reproduction from the accessible copy and makes the recipient liable for any infringement of copyright that might occur as a result of unauthorised use of the accessible copy.

The work of the Foundation has for many years been facilitated by agreements that have been reached with publishers. Under these agreements, publishers have been supplying the Foundation with electronic files of school books used up to 8th grade so that the Foundation can use these as the starting point for making accessible copies rather than a printed text which would need to be scanned. Whereas scanning is reasonably easy for leisure reading material, educational material which includes diagrams, tables and so on is much more difficult to scan satisfactorily.

For other educational material there have been more problems reaching agreement on access to electronic files. The Foundation has only been able to reach agreement with some publishers. A comprehensive solution involving an agreement with the RRO (Reprographic Rights Organisation) in Brazil for books and journals used in higher education is, however, now in the pipeline and is expected to be agreed soon. Under this agreement, the RRO will maintain a databank of electronic files which the Foundation will be able to access in order to produce encrypted files in electronic Braille or DAISY formats. The Foundation will then be able to send CDs of these encrypted files to visually impaired students who will be able to read the files, either on a screen or using screen-reading software. It will, however, not be possible to copy the encrypted files. The agreement will provide a solution to the security concerns of publishers by building in safeguards such as encryption. The electronic database will also be of benefit to the RRO as a way of modernising its licensing of photocopying. It will be possible for the RRO to use the database as the source of copies of extracts of text which are sold to students generally.

Case study 5: Canada

CNIB is a nationwide, community-based, registered charity committed to public education, research and the vision health of all Canadians. The CNIB Library85 offers people across Canada access to thousands of titles in Braille, printbraille, talking books, descriptive video, newspapers and magazines, as well as access to telephone, reference and online services. CNIB is Canada’s largest producer of alternative format materials.

Before 1997, the Library and others making accessible formats for visually impaired people in Canada had to rely on licences with publishers. However, individual licences with publishers for each title to be made into an accessible format had by this time been replaced by a helpful licensing scheme administered by CanCopy (now Access Copyright) that allowed the CNIB Library to produce, for a flat annual fee of $500, any title in an alternative format.

In 1997 a new exception was introduced into Canadian copyright law so that a non-profit organization acting for the benefit of people with a perceptual disability can make a copy or sound recording of a work in a format specially designed to meet the needs of that person without infringing copyright. Although the exception has some limitations, particularly because it does not permit the making of large print works and audio-described cinematographic works and it does not apply if the work is commercially available86 in a format specially designed to meet the needs of a person with a perceptual disability, it has nevertheless reduced the number of times that the CNIB Library must request permission to make alternative formats by roughly 90%.

The CNIB Library is now acting under the exception to copyright to update some analogue accessible formats to digital copies as well as making accessible copies of works acquired for the first time. Its retroactive activity includes converting 4-track audiocassette tape to the DAISY format or hard copy Braille to electronic Braille. A second exception in Canadian copyright law relating to maintenance or management in general of a library’s permanent collection is also helpful sometimes. This exception87 permits a work to be copied in an alternative format if the original is currently in an obsolete format or the technology required to use the original is unavailable.

A number of organizations in Canada have, however, recognised that efficient and fast supply of alternative format material to people in Canada with a perceptual disability can be improved even more. The development of an electronic Clearinghouse for alternative format production was first envisaged in 1998 and this idea has been developed and evolved since then culminating most recently in a pilot project. Underlying the idea of a Clearinghouse is the desire to significantly reduce the time delay for the production of alternative formats as well as to increase the number of works that can be made available in alternative formats. A key objective of the Clearinghouse pilot project was to create a mechanism whereby publishers can make their electronic files available to alternative format producers such as the CNIB Library, but in a way where the files are safeguarded against unauthorized use. Another key objective was development of a standard licence agreement between publishers and alternative format producers to streamline rights management and simplify provision of electronic files so that, for example, publishers should only be asked to provide any title once.

Eight publishers and six alternative format producers signed the Standard Agreement of the Clearinghouse pilot project. The pilot project was conducted by the Canadian Library Association with the active participation of a number of other organisations representing publishers, educators and print-disabled people. There was a strong consensus amongst participants that the pilot project was beneficial and, although a number of problems were identified that need to be addressed88, the Clearinghouse as built for the pilot project is believed to be an important first step that should continue with modifications.

Case study 6: USA

The Individuals with Disabilities Education Improvement Act (IDEA) of 2004 in the US has introduced a number of provisions relating to the education of children with a disability. One provision establishes the National Instructional Materials Access Center (NIMAC)91. This Center has the following statutory obligations:

    (a) To receive and maintain a catalog of print instructional materials prepared in the National Instructional Materials Accessibility Standard (NIMAS) made available to the Center by the textbook publishing industry, State educational agencies, and local educational agencies.

    (b) To provide access to print instructional materials, including textbooks, in accessible media, free of charge, to blind or other persons with print disabilities in elementary schools and secondary schools, in accordance with such terms and procedures as NIMAC may prescribe.

    (c) To develop, adopt and publish procedures to protect against copyright infringement, with respect to the print instructional materials provided to the Center under obligations placed on publishers by other provisions in the legislation.

These other provisions in the legislation require a State or local educational agency that chooses to coordinate with NIMAC to contract with a publisher of print instructional material, either to require the publisher to provide electronic files of the content of that material in the NIMAS standard to NIMAC, or to purchase instructional materials from the publisher that are produced in, or may be rendered in, specialized formats. The 2004 Act also amends US copyright law so that a publisher does not infringe copyright by acting as required to provide electronic files of the content of print instructional material to NIMAC.

This package of legislative change is designed to make text books for school children more accessible and matches obligations on publishers with assurances to protect against copyright infringement. The Association of American Publishers (AAP) was an active participant in the forum that led to the passage of the IDEA legislation.

There are now other initiatives being pursued in the US involving collaboration with publishers to improve the availability of text books in accessible formats. The AAP announced in March 2006 the launch of the Alternative Format Solutions Initiative (AFSI)92. AFSI is aimed at material used in tertiary education and involves three stages as follows:

    (1) Researching problems with current systems to aid in developing practical, collaborative solutions;

    (2) Identifying individual solutions that, together, will form a coordinated national accessible materials solutions framework; and

    (3) Assuring that solutions continue to evolve by embracing new technologies and aligning with the needs of the rapidly changing post-secondary environment.

AFSI will be exploring whether a voluntary system and/or a legislative solution is needed. Colleges and universities, students, disabled student support services, professionals, national and state disability advocacy groups and technology providers will all be involved in AFSI with the aim of creating a national framework to provide print-disabled post secondary students with specially-formatted course materials on a timely basis.

5.3 Production and international dissemination of accessible copies

Case study 7: The Netherlands

Dedicon Netherlands93 has been producing alternative format material under an agreement with the Federation of Dutch Publishers (NUV). Under the agreement there is no distinction between types of accessible format, although there is a small distinction between leisure titles and study material as the latter are exempt from a licence fee. The NUV has advised all members to cooperate and allow production and distribution of material in alternative formats for people with a print disability. In turn, Dedicon is required to ensure that accessible copies are only used by people with a print disability, although this covers not only visually impaired people but also people with other handicaps such as spasm or dyslexia.

To make production of text files and Braille copies easier, Dedicon is, in addition, able to request a digital file from publishers. Publishers either give these files to Dedicon or sell them for a small fee. Although acquiring the digital files is often helpful to Dedicon, a standard format for the files which is easy to convert to the accessible formats needed would be even more helpful.

Despite the comprehensive agreement between Dedicon and NUV, some problems were, however, encountered in the production of some accessible formats. For example, publishers were sometimes reluctant to agree to the distribution of accessible digital texts of leisure reading material. The changes to copyright law in the Netherlands made in September 2004 have removed all the barriers by providing a new exception to copyright which mirrors the agreement between Dedicon and NUV. The new legislation makes the quick production and delivery to print impaired people of new books in accessible formats possible in all cases. Dedicon continues to pay publishers a small licence fee for leisure reading books.

As well as producing accessible material for use by handicapped people in the Netherlands, Dedicon is also able to assist print impaired people in other countries. Dutch is, however, not a widely spoken language but there is some demand for books and magazines in Dutch from people in Belgium (Flanders) and Dutch emigrants in the USA, Canada, Australia and New Zealand. Foreigners with a print impairment are allowed to subscribe to the Dutch library for the print impaired services. Dedicon has an arrangement with NUV which permits it to sell accessible copies of books to libraries for the print impaired abroad. However, under the arrangement these copies are exclusively for use by people with a print disability. This safeguard prevents activity that would be detrimental to publishers.

Case study 8: Russian Federation

The making of accessible copies for visually impaired people in the Russian Federation is underpinned by an exception to copyright. This permits reproduction of publications in Braille or other special formats for visually impaired people so long as the activity is undertaken on a not-for-profit basis. The exception does not permit electronic copies to be made as these are not a special format for the blind, but is otherwise comprehensive in its coverage so that talking books as well as Braille copies of any published material can be made for example.

With some leadership from the Russian State Library for the Blind94 in Moscow, there is a well-developed and professionally run network of 72 libraries for the blind across the country. These Russian Special Libraries for the Blind make full use of what is permitted by the exception to copyright producing copies of books in alternative formats for their visually impaired readers. These copies are sent where they are needed throughout the country, without the users being required to pay. The efficient distribution system for accessible copies made by this network of libraries also covers users in a number of other countries, including Germany, Israel, the USA and Australia.

Case study 9: France

BrailleNet95 is a not-for-profit agency that was created in France in 1997 in order to develop ways in which the internet could be used for social, educational and cultural inclusion of visually impaired people. Of particular relevance to the making of accessible copies of copyright works for visually impaired people is the BrailleNet internet server “Hélène”96. This server is managed by BrailleNet to gather together in one place source files of published material which are provided by publishers and prepared e-files as supplied by specialized centres which produce adapted material for visually impaired people. The server collects francophone works across all areas of publishing, including literature, textbooks and documentation. The server is managed by INRIA, “Institut National de Recherche en Informatique Appliquée” (Grenoble) and CCR, “Centre de Calcul et de Recherche” in Université Pierre et Marie Curie” (Paris), supported by the French Ministry of Culture and Communication and funded by private sponsors. BrailleNet is a partner of CNEA, “Comité National de l’Edition Adaptée”, which represents most of the main francophone transcribers producing material in alternative formats for visually impaired people.

The files stored on the “Hélène” server can be used by certified organizations in order to adapt the material for visually impaired people. For example, the e-files can be used to produce large print or Braille books. Security features are built into the access arrangements to protect the interests of publishers.

BrailleNet has contractual agreements with publishers regarding acquisition and use of the

e-files for the server “Hélène”. These contracts grant rights to make accessible copies for the whole world because the server is a network accessible via the internet. In practice, given the material that is covered, most of the partners of BrailleNet are French, but some are located in other countries, including Belgium, Switzerland, Canada and some countries in Africa.

The contract between BrailleNet and publishers has been developed to recognise the needs and concerns of both parties. One of the key features of the contractual agreement is, as already indicated, the granting by publishers of world-wide rights for representation and reproduction of the e-files available on the server “Hélène”. Other important aspects of the contract are as follows:

- BrailleNet promises not to modify or correct the content of an e-file supplied by a publisher. Where a visually impaired user needs an e-file modified in order to access the content, such as in order to read figures in a textbook, then a new e-file is created without destroying the original e-file.

- Where an e-file cannot be provided, the publisher authorizes BrailleNet to provide access to the content of a copyright work in another way such as by manual keyboarding or optical scanning.

- A catalogue of e-files is available on the BrailleNet website.

- BrailleNet only allows access to e-files by specialized centres’ authorized users or organizations providing people with a visual impairment access to copyright works.

- All files of works protected by copyright are transmitted to the recipient by e-mail in an encrypted form.

- BrailleNet promises to keep the security of its server updated in line with the most recent technical innovation.

- BrailleNet will supply publishers with a list of users and downloaded works.

- BrailleNet will refuse access, or withdraw access, to files on the server if there is any doubt about use of the files, such as use in a way that infringes copyright or use that breaches the contract.

- A royalty is payable to the publisher for each alternative format copy produced.

From the server “Hélène”, at the beginning of 2006 BrailleNet opened a digital library for visually impaired people97 with the cooperation of a few volunteer publishers. Another contract has been written which gives technical guarantees for the author and publisher and establishes a new frame of use for the files. Registration with and borrowing from the library are free of charge for users; other details are being developed during the first year of operation.

Case study 10: USA

A nonprofit enterprise, Benetech, sponsors the Bookshare.org98 initiative in the USA. Bookshare.org was set up as an online community through which books that have been scanned by members and supporters can be shared with others who are visually impaired or otherwise print-disabled. This activity removes significant duplication of effort and is possible because Bookshare.org can act under the special exception to rights in US copyright law that permits, subject to certain conditions, the reproduction of publications into specialized formats for disabled people. Bookshare.org also obtains original digital copies of books directly from publishers and these, together with the files of scanned books are converted by the organization into DAISY digital talking books and BRF digital Braille. This accessible material is then distributed to schools, libraries and end users who have a print disability.

The activities of Bookshare.org were examined in considerable detail in a case study99 in the recent WIPO study on Automated Rights Management Systems and Copyright Limitations and Exceptions. That case study explained how Bookshare.org has gone beyond the requirements of the exception to copyright to ensure broad support for the project, including by working with the Association of American Publishers. This explanation includes details about a security strategy that has seven elements to minimize the risk of abuse whilst maximizing the benefits to people with a disability. Briefly, these seven elements are as follows:

- Users must show they qualify by supplying signed certification completed by an appropriate professional.

- Users must sign a contractual agreement forbidding copyright infringement by redistribution of material.

- Accessible copies include a copyright notice acknowledging the source and forbidding further reproduction or distribution and use by people who are not Bookshare.org users.

- Books are supplied with encryption and users are supplied with a custom decryption program which only decrypts content delivered for that user.

- Downloaded material is fingerprinted when it is decrypted by a user so that the source of any subsequent copyright violations can be traced.

- Bookshare.org maintains a database of all transactions, encryption codes and fingerprints.

- A security program monitors all transactions and can suspend a user detected to be undertaking excessive downloading or other unusual activity.

To date, Bookshare.org’s activities have largely been confined to supplying digital books within the US as it is underpinned by the US copyright exception. However, Bookshare.org is actively working to expand its operations to be able to circulate accessible books outside the US. It already has global rights on roughly 2000 titles granted by two large publishers and will be launching its international service in the near future. Although 15-25,000 titles of current titles would be a more useful collection size, broadly equivalent to a medium-sized bookshop, 2000 titles is a good and useable start to Bookshare.org’s international operation. Initially at least, books are expected to be supplied to mainly libraries outside the US rather than direct to end users as partnerships with libraries will enable appropriate certification of disability as well as the ability to provide customer service. Bookshare.org’s experience of getting agreements with publishers to role out new services is largely positive and it has just initiated a partnership with the Lex Mundi Pro Bono Foundation which is working on publisher agreements in New York and London. Where there has been active engagement in discussions, Bookshare.org has been quite successful in getting agreements. There are limitations, however, largely in getting into discussions in the first place.

Case study 11: Denmark

Danish copyright law allows the Danish National Library for the Blind (DBB)100 to produce and distribute Braille and other accessible formats to visually impaired people, people with dyslexia and other people who have a handicap that prevents them from reading printed material. This exception applies to any books that have been published in Denmark (but not books that have only been published abroad). Distribution is possible only to individuals who have been able to document the character of their disability in writing. In addition end users have to agree in writing that everything they receive from the DBB is for strictly personal use and will be destroyed after use. Membership of the library does not depend on nationality and so the DBB is able to distribute to individuals in other countries too.

As well as relying on the copyright exception, the DBB has an agreement with publishers and reports a high level of trust between publishers and the DBB which has been established over a long period. The trust that exists depends on maintaining good practice and ongoing channels of communication and negotiation. The agreement with publishers means that talking books on cassettes, Braille books and Braille music can be distributed to both disabled individuals and institutions serving the blind and other disabled people, both in Denmark and abroad. The agreement with publishers does not permit electronic books and digital talking books to be distributed to organizations, but does provide effective measures to prevent possible abuse of the materials produced by the DBB. Each electronic book and digital talking book has a unique ID and records are kept by the DBB so that any abuse can be traced back to the individual who has been supplied with the accessible copy. The reassurances that that these provisions provide for publishers may be in part why some publishers at least are willing to provide their electronic files to the DBB.

Case study 12: Australia

The Vision Australia Information and Library Service (VAILS)101 produces accessible copies in audio and Braille under a statutory licence that is established by Australian copyright law. Most of VAILS’ clients use audio material from a collection that includes cassettes and CDs from commercial suppliers, audio books in DAISY format or on cassette that have been produced by other print disability organisations in both Australia and overseas, and audio books in DAISY format that have been produced by VAILS. VAILS is not permitted under the statutory licence to make audio copies of a title that is already available commercially in that form. Also, the provision in Australian copyright law does not apply to musical works, so if a Braille copy of these is needed, it is only possible to make this by seeking permission from the music publisher.

In addition VAILS has encountered the same sort of problems that many other organisations seeking to assist visually impaired people have encountered when trying to develop

co-operative collection policies involving the exchange of material in accessible formats across borders. Australian copyright law does not clearly deal with such international exchanges. Often, in order to obtain material from an overseas organization, VAILS must obtain permission from the copyright holder. As an example, recently an exchange of Braille files between print disability organizations based in Australia and the UK took nearly six months to achieve. This was due to lack of response from the copyright holder despite repeated approaches to seek permission.

The Australian Copyright Act is currently being revised to deal with several issues, including certain concerns with exceptions to rights. Consultation exercises have covered, amongst other things, whether or not additional provision should be made for fair use of a copyright work, and if so, what form this should take. Not surprisingly, Vision Australia and other organizations representing disabled people have lobbied for additional provision that would overcome at least some of the problems they have encountered with the limitations in the current legislation.

In September 2006, the Attorney General in Australia released draft legislation to be introduced to Parliament, including proposals on copyright exceptions102. This proposal includes a new exception to copyright covering four specific types of use, one of which is use by or for a person with a disability. The use would enable a disabled person to obtain a reproduction or copy of the work or other subject-matter in another form, or with a feature, that reduces the difficulty the person had reading, viewing or hearing the work in a particular form. Activity that might have a commercial advantage is, though, specifically ruled out. Otherwise, the scope of the exception is left to the courts to interpret in a flexible way as any activity under the exception must meet a test that is very similar to the Berne 3-step test.

This new exception would not replace the existing exceptions in Australian law enabling certain activity for the benefit of disabled people. Where activity falls within the scope of what they permit, including where there is a requirement to pay remuneration to the copyright owner, then the activity continues to be covered by that exception and remuneration continues to be payable. The new exception, rather, complements existing provision covering the making of accessible copies for visually impaired people, perhaps dealing with some of the difficulties identified above that have been encountered by VAILS. There is at this juncture no guarantee that the new copyright legislation will be ratified, but, assuming it passes into law in due course, it may, though require interpretation by the courts before its full utility can be appreciated.

Case study 13: EUAIN

The EUAIN103 Project (European Accessible Information Network) has already been mentioned and material that has been published as a result of this project is a source of information about much relevant activity that is taking place in Europe, some of which is also already covered in other case studies in this report. EUAIN receives funding from the European Commission but it is a time-limited project with funding finishing in April 2007. It has the aim of promoting e-Inclusion as a core horizontal building block in the Information Society. Thus, the existence of EUAIN is itself an example of how collaborative activity can improve understanding about the needs of print disabled people with respect to accessible material. EUAIN also explores copyright issues that might need to be addressed in order to achieve greater accessibility. The EUAIN project partners are committed to the provision of accessible information and include publishers, service providers and academic institutions.

EUAIN provides extensive resource for those concerned about accessible information on its web portal. For example, by advertising and promoting accessibility standards, EUAIN helps those developing information products to build accessibility for those with a print disability into the system right from the beginning, instead of the traditional approach of adding those features later.

Amongst other things, EUAIN partners share their experiences to demonstrate how the aim of building in accessibility from the start has been met (or what problems have been encountered). Recent case studies available on the EUAIN Training and Resource Centre104 include:

- the simultaneous release in the UK of a popular work of fiction in normal print, large print, Braille, audio and digital talking book by collaboration between the RNIB, publishers and others;

- work by the Dutch Library for the Blind to convert 37 newspapers automatically to accessible XML formats, making them available at the same time if not before the printed editions;

- the Cairn project, set up by two French and two Belgian publishers, supported by others, to unify access to scientific journals in human and social sciences on the internet.

The case studies give detailed information about what is being done, including information about the accessible information processes used, the standards, software and so on.

CHAPTER 6

ANALYSIS OF THE PROBLEMS AND SOLUTIONS

6.1 Introduction

6.2 The copyright problems

6.3 Technology

- where a visually impaired person can take an inaccessible printed text and convert it to an accessible text for themselves, such as by using Optical Character Recognition (OCR) technology and scanning devices in order to obtain access to the text using a screen reader or an electronic Braille display;

- facilitating the publication of e-books and other digital media that provide accessibility for visually impaired people as well as those without an impairment;

- improving the quality, ease of manufacture and distribution of accessible copies made by non-profit bodies for visually impaired people and also to improve the ease of use by visually impaired people who receive the copies so made.

- ensuring that technological developments do not also make it easier to use protected material illegally and in ways that are damaging to their interests;

or, if that is not possible,

- the development of security measures that can be used with new technological developments to prevent illegal activity.

6.4 The international framework

6.4.1 International intellectual property treaties and conventions

6.4.2 Other international treaties and conventions

6.4.3 The work of WIPO

Given the developments in the area of human rights for disabled people, in particular the agreement on a draft text for the Convention on the Rights of Persons with Disabilities, it may be that it would be helpful to those developing their national copyright laws if WIPO were to organise or facilitate further discussions on the relationship between copyright and the rights of disabled people. This could help everyone decide how best to provide the balance between the interests of different stakeholders, something that now appears to be an essential requirement in this area rather than just an option.

Another area of work that WIPO undertakes is providing assistance for developing countries which are introducing copyright laws for the first time or amending their copyright legislation. This work, amongst other things, is likely to involve advice about how to interpret the various international conventions and treaties. The Tunis Model Law on Copyright for Developing Countries, developed by WIPO and UNESCO in 1976, was undoubtedly drawn up to assist this work. However, it is clear that technological developments and changing needs in many areas mean that a Model Law such as this must be revised and updated from time to time. The development by WIPO of a new provision in its draft copyright law relating to use of copyright materials by visually impaired people119 is therefore helpful. It may be, however, that the scope of this provision should be reviewed and revised if necessary in the light of suggestions made below about the type of provision that would be appropriate in national laws.

6.5 Copyright exceptions in national laws

6.5.1 Are exceptions necessary?

6.5.2 Exceptions not specifically for the benefit of visually impaired people

6.5.3 Private copying by visually impaired people

6.5.4 Exceptions in developing countries

6.5.5 Detailed form of exceptions to rights

6.5.5.1 Scope regarding end beneficiary

3-step test, although as discussed in Chapter 1 this will depend on which restricted acts and what protected material the exception applies to, and what international conventions and treaties a country belongs to. However, it is difficult to imagine scenarios for most countries where a useful exception could be constructed without having to have regard to the 3-step test. The second reason is really linked to the first in that the 3-step test exists to protect the interests of right holders. However, even without the 3-step test, in order to encourage right holders to cooperate in other ways with solutions to the access needs of visually impaired people, it seems desirable to make sure that any exception is limited in this way.

6.5.5.2 Works that may be used

- the type of copyright work that may be used;

- whether or not the work must have already been published;

- whether or not activity can take place under the exception for a work that is already available in an accessible format.

6.5.5.3 Profit/non-profit making activity

In a few countries there appears to be a test that would prevent use of accessible copies by visually impaired people if their use has a profit-making purpose. This test seems much harder to justify. A visually impaired person may be unable to access a copyright work that is needed for a number of reasons and one of those reasons may be that they need to read the work as part of their job. Without an accessible copy that person is put at a disadvantage compared to an employee with normal sight. There seems no reason why in principle an exception to copyright could not facilitate their need to have an accessible copy just as where a person needs an accessible copy for study or leisure activities. Other provisions, such as a requirement to purchase an accessible copy if one is commercially available rather than act under the exception as discussed above, are probably more appropriate ways of limiting what can be done under an exception.

6.5.5.4 Permitted/restricted acts covered

In Chapter 1, the compatibility of exceptions with international conventions and treaties was considered with respect to a number of acts restricted by copyright. This was because it seems likely that an exception will need to provide not only for the making of accessible copies, but also their distribution to visually impaired people, either as physical copies, or by electronic delivery. Quite surprisingly, therefore, nearly half of the exceptions that have been found in national laws only seem to provide an exception to the reproduction right. Some exceptions do specifically provide for distribution and/or communication of the accessible copies to visually impaired people and a few use terms such as “use” and “supply” which may be broad enough to cover a variety of distribution methods. In order to avoid misunderstandings, it would seem preferable for an exception to clearly define how accessible copies may be distributed to visually impaired people. In order to avoid difficulties, it would seem preferable that both hard copy and electronic delivery methods should be possible. Regarding the latter, this may, of course, give rise to considerable concern from right holders as it does mean that very valuable digital copies will have been made. However, rather than restrict the ability of visually impaired people and those organizations working to help them from benefiting from the advantages of new delivery mechanisms, it may be better to build other safeguards into the exception.

When accessible copies are made, as well as involving a reproduction of the copyright work, this may also involve an adaptation. This might be the case, for example, where information that is presented in non-verbal ways such as in graphs, diagrams or pictures, needs to be described or labelled differently in order to make it accessible. It may also be necessary to add navigational aids to digital files so that visually impaired people can find the right page or paragraph number easily. Although it may be helpful for those making accessible copies under an exception to know to what extent modifications such as these are possible, few exceptions in national laws seem to address this sort of issue specifically.

Connected to this issue is whether or not moral rights in a work might be infringed by the making of accessible copies, particularly the integrity right, that is the right to object to derogatory treatment of a work. Authors may be particularly concerned where such changes are made. There is unlikely to be a problem with an exception limited to meeting the needs of visually impaired people as they do not require any changes to the content of a work, only the way it is presented. This may, though, be a more important issue that should be considered where an exception extends to disabled people more generally.

6.5.5.5 Restrictions on who may undertake activity

A significant number of exceptions that have been found do not restrict who can undertake activity under the exception, although limitations may, of course, be implicit by requiring activity to be not-for-profit for example. Some countries do limit the actual or type of organisations that might act under the exception. Where activity can only be undertaken by some organisations, there might be a registration or designation process to name them. In some cases there are more limitations on who can undertake activity for some formats that can be made than for others. What sort of provision is appropriate here may in the end depend on what other conditions apply to activity under the exception. Limiting activity to only certain types of or certain named organisations could make it easier to make sure that activity does not damage the legitimate interests of right holders.

However, technology has made it easier for organisations that do not have a long tradition of helping visually impaired people to offer such assistance now. For example, educational establishments in the past may have obtained accessible copies for their visually impaired students and teachers from just a few not-for-profit bodies specializing in their production. Educational establishments may, though, now have facilities to make the copies themselves which clearly reduces the delay in delivering accessible copies to those who need them. Exceptions that limit activity to organizations which have as a primary mission helping people with a disability could in particular rule out much assistance that could be given to visually impaired people by mainstream schools and libraries for example. Such limitations could also work contrary to other policy objectives, such as educating people with a disability in the same institution as others as far as possible. It may therefore be appropriate to define who can undertake the activity under the exception widely and rely on other means to protect publishers’ interests.

6.5.5.6 Special formats or any accessible formats

There are wide differences between the types of accessible format that can be made under the exceptions that have been found in national laws. At one end of the spectrum, only Braille copies can be made and at the other end of the spectrum, there is no limitation to a particular type of format. With the latter type of provision, there is usually some attempt to define the formats permitted, such as by permitting formats to the extent required by the disability or ones that give improved access to the work, but in general provisions of this type appear to permit any accessible format to be made (subject to the other conditions in the exception of course) if that format has the effect of making a work accessible. What is “accessible” probably needs to be measured as a functional test, such as a copy that permits a person with a visual impairment to read the copyright work as flexibly and comfortably as a person without an impairment.

Technological changes have, of course, given rise to new formats that can help visually impaired people. Indeed, the DAISY Consortium was established and the DAISY format was created to standardize the form of digital talking books drawing on mainstream technological standards such as HTML, XML, MP3 and SMIL files. The DAISY format began as a format for talking books but has developed into a digital book capable of presentation to a visually impaired person as text or Braille as well as a talking book. The DAISY digital book makes it as easy to “leaf” through the book as a printed one; pages, chapters and paragraphs can be easily located; and bookmarks can be used so that a visually impaired person can return to the point they got to just as a person with normal sight can mark where they are up to in a printed book.

6.5.5.7 Compulsory licence or exception

International conventions and treaties in general do not provide guidance on whether or not an exception to rights should be accompanied by remuneration for right holders, that is whether or not the provision must be in effect a compulsory licence or can be a pure exception permitting activity without any compensation to right holders. However, it may well be that the need to take into account the conditions in the 3-step test will mean that some types of exception are more likely to be acceptable if right holders receive fair compensation. There does not appear to be anything that makes it easier to decide how to construct an exception for the benefit of visually impaired people in this respect than in any other area.

Countries which have exceptions in their national laws have therefore had to make their own decisions about whether remuneration for right holders should be provided in return for use of their protected material for the benefit of visually impaired people. Not surprisingly, the World Blind Union argues that, so long as the additional cost of creating accessible material lies with the disabled individual or voluntary organization, compensation to rights holders may not be justified. This argument may not be supported by right holders as they may with some justification say that it is not necessarily fair to expect them to forego royalty income for use of their property because making accessible copies is expensive; governments perhaps should support the needs of visually impaired people more if meeting their needs is costly, but right holders may still deserve payment for use of their property. In practice, though, many right holders who have agreed licensing deals over the making of accessible formats have not sought royalty payments and this is obviously welcome to those trying to meet the needs of visually impaired people.

It has not been possible to determine the reasons that underpin the choices that countries which have exceptions have taken on whether to provide an exception in the form of a compulsory licence or a pure exception. However, case study 6 of Chapter 4 about a relatively new exception to copyright does illustrate the concern where decisions about this appear not to have taken into account longstanding practices. Perhaps surprisingly, though, a large majority of countries have chosen a pure, non-remunerated exception. Of the remaining countries, most require payment to right holders for at least some formats, or production of a certain number of copies. But perhaps the most interesting provision is to be found in three countries that have neither a compulsory licence exception nor a pure, non-remunerated exception. They make provision under which there is only the possibility of remuneration being paid to right holders, that is right holders have to take some action in order to be paid. This could be a useful compromise approach in that it could ensure that the needs of visually impaired people are met as activity under the exception is possible, but this would not be at the expense of alienating right holders who can have no stake in the process. As right holders have, though, to be proactive if they want to seek possible remuneration, it could facilitate useful discussions between stakeholders, which could solve problems that cannot be addressed by exceptions alone. Of course, right holders who are able to seek remuneration for activity under an exception may be happy to forego that payment. This might especially be the case if, as a result of discussions about the possibility of remuneration, right holders are reassured because they understand better the limited nature of activity under the exception.

6.5.5.8 Acknowledgement required

Authors generally value their moral rights highly, including the paternity right, that is the right to be named as the author. They are likely to want anyone who reads their work to know that they are the author of that work. It is, therefore, quite surprising that less than half the exceptions that have been found in national laws appear to require an acknowledgement. As this seems to be an entirely non-contentious and reasonable requirement to include, it may be something that should be required in more countries.

6.5.5.9 Other conditions

A significant number of countries require the exception they have provided to be limited by something the same as or very similar to the 3-step test. In terms of ensuring that the legitimate interests of right holders are taken into account in activity under the exception this is no doubt very reassuring. But those undertaking activity under the exception must have considerable doubt about what, in fact, is the effect of having to comply with the 3-step test as well as any conditions more explicitly set out in the exception. It may be that governments make information available locally to help people understand what they can and cannot do, as without such help, this legislative solution to the balancing act that the 3-step test requires legislators to undertake may not be that helpful. It may, rather, be better to set out specific conditions applying to activity under the exception in some detail to make what can and cannot be done more transparent. There is an argument, though, that having a broad exception but making it subject to the 3-step test, is more flexible as it can adapt to changing needs and circumstances more readily than an elaborated exception. This is an issue that does, of course, have more general implications than exceptions for the benefit of visually impaired people and the best way to meet the obligations imposed by the 3-step test may therefore be worthy of further debate in the context of exceptions more generally.

A number of other conditions applying to exceptions for the benefit of visually impaired people have been found in national laws and these are set out in some detail in Chapter 2. It may be that some of these conditions, such as record keeping of copies made and setting out what happens when copies made under the exception are used for purposes other than meeting the needs of visually impaired people, would be useful alternatives to the imposition of the

3-step test. The difficulty here as elsewhere is, of course, to identify conditions that are reasonable in that they do not make it too difficult to help visually impaired people access the written word, but they do give some reassurance to right holders.

6.5.5.10 Overridable by contract

As has been discussed above, there has been some debate in general about the balance between exceptions and rights in international treaties and conventions and whether certain exceptions should themselves be expressed as rights for users. This is likely to be a sensitive and difficult issue where it may be very hard to reach agreement at either international or national level on the issue with respect to exceptions for the benefit of visually impaired people in isolation from a wider consideration of exceptions. Only three countries appear to have any specific provision at all relevant to the exceptions for the benefit of visually impaired people, although it may be that local case law which has not been examined is particularly relevant to whether or not exceptions can be overridden by contract.

There are reasons why it might be more important to consider this issue now than in the past though. When copyright works in the form of the written word were published only on paper, much of the balance in the copyright framework may have been provided simply because it was not possible to easily stop many uses. It may be that the digital environment has given rise to a time when some exceptions to rights in a copyright work have themselves to be in the form of rights that cannot be overridden by contract or other means. The use of DRMs makes the balance that may have existed in the paper world even more different. These issues have, of course, been elaborated in more detail in the recent WIPO Study on Automated Rights Management Systems and Copyright Limitations and Exceptions122.

6.5.5.11 Interplay with DRMs

Few countries outside the European Union and the USA appear to have made any provisions regarding the relationship between exceptions and use of DRMs. However, in many cases countries do not seem to have provided any protection for right holders against circumvention of DRMs either. This issue has, moreover, been addressed in considerably more detail in the two recent WIPO Studies as identified in Chapter 2 and elsewhere. Some other issues relevant to DRMs are, however, noted below.

6.5.5.12 Other comments

Other provision has been found in a few national copyright laws that may be particularly helpful to those making accessible copies under exceptions. A few countries make some provision for the sharing of accessible copies and/or intermediate copies made in the production of accessible copies. Such provision may well help to reduce the costs of production of accessible copies, but any additional movement of valuable digital copies of works does, of course, need to have regard to rights holders’ legitimate interests. One country makes some provision about deposit of electronic files by publishers to help those making accessible copies under the exception.

6.5.6 Do exceptions need to be the same in all countries?

It is clear that there are significant differences in the exceptions that have been provided in national laws for the benefit of visually impaired people. International standardization of such exceptions has been called for by some as a way of making it easier to transfer accessible copies between jurisdictions. It is not clear that this alone would in fact deliver this objective. The issue of import and export of accessible copies is discussed in more detail below.

However, it does seem that there could be some benefit if WIPO were to facilitate a discussion at international level of the best way to deliver exceptions for the benefit of visually impaired people. It may be that exceptions should not vary as much as they do because some of the variations mean that the needs of visually impaired people and the interests of publishers are not being dealt with in the most effective way. Of course, what material is published and what people want to read varies significantly between countries, and the level of technological development is by no means uniform across the world so not all visually impaired people are able to use accessible digital copies for example. But the case studies, such as case 2 of Chapter 4, show that even in developing countries technology may be available to address the needs of visually impaired people some of the time. And even in the most technologically advanced countries some visually impaired people still want a Braille book printed on paper. Differences between countries may not, therefore, be such as to justify markedly different provision in an exception to copyright for the benefit of visually impaired people.

A discussion about exceptions in this area would not only help those countries which do not at this time have such exceptions, but also help those countries which do have exceptions, but where they may be rather restrictive or insufficiently clear in certain respects. Some exceptions were no doubt devised sometime ago before technological developments led to new and more useful ways of presenting copyright material in accessible forms and so do not necessarily permit the most up-to-date types of accessible formats to be made. However, any discussion must, of course, have regard to the best way to deliver access for visually impaired people without jeopardizing the legitimate interests of right holders who face significant threats from illegal use of their material in the digital world.

6.6 Import and export of accessible copies made under exceptions

6.6.1 Does this issue need to be addressed?

The World Blind Union, DAISY Consortium and IFLA Libraries for the Blind Section all argue that the ability to move accessible copies between jurisdictions would allow the costs of making accessible copies to be reduced. The effort and cost of making a master copy with appropriate mark-up from which accessible copies can be made would not have to be repeated in each country where that accessible copy is needed. This would in turn enable the number of titles available in accessible formats to be increased as the limited resources that can be devoted to this activity would not be wasted in unnecessary, repetitive work. Right holders are likely to be sympathetic to these arguments as they understand the high costs of making accessible copies. Indeed, for titles that are likely to be read by only a few visually impaired people, the high cost is no doubt part of the reason why there are not more commercially available accessible formats.

Most stakeholders would therefore probably agree that it can be useful to export and import accessible copies over borders, but there may be less agreement about what, if anything, needs to be done that is not already happening to facilitate this. Case studies 9 to 13 of Chapter 4 do, however, illustrate the current difficulties in undertaking this activity under agreements with publishers. Indeed, it is clear that the current difficulties in reaching agreements do not necessarily serve publishers well any more than visually impaired people. However, case studies 7, 9 and 10 of Chapter 5 illustrate activity under agreements with publishers that is permitting, or will permit, international exchange of accessible copies in at least some situations in a much more useful way. It does, though, still appear with one exception that a considerable effort is likely to be devoted to the reaching of agreements with publishers even if agreement is fairly readily forthcoming. The exception is case study 7 of Chapter 5 where an agreement that permits accessible copies to be sold to libraries for the print impaired abroad has been reached with the organisation representing publishers nationally rather than with individual publishers.

Some have argued that the introduction of exceptions to copyright in more countries in recent years may have made the problem of international exchange of accessible copies worse. Prior to exceptions being in place, agreements with publishers may have permitted at least some activity making accessible formats in a country, and these agreements could also cover international sharing of copies made. With the advent of more exceptions underpinning the making of accessible copies, and fewer agreements with publishers, and in the absence of provision in national laws permitting export and import of accessible copies, there is more of a problem. An advantage envisaged by the DAISY Consortium was easier cross border flow of titles, but the increase in exceptions in national laws under which it might be possible to make DAISY digital books is now restricting the very thing that adoption of the DAISY standard was supposed to help.

It does, therefore seem that this issue needs to be addressed, but it is much more difficult to decide what the solution should be.

6.6.2 Provision in national law

A detailed analysis of provision in the laws of those countries that have specific exceptions to copyright for the benefit of visually impaired people is provided in Chapter 3. This Chapter started, however, by looking at relevant provision in international conventions and treaties relating to intellectual property. Regarding the latter, the conclusion was that international treaties and conventions offer little guidance regarding what provision can or should be made on the distribution of accessible copies made under exceptions both within and between countries. National legislators are generally able to decide for themselves what, if any, provision to make, only having regard to overriding principles such as the 3-step test.

Chapter 3 then considered the types of distribution that can happen within a country with accessible copies made under the specific exceptions to copyright. This involves looking at both distribution of an accessible copy made by an organisation to a visually impaired person and distribution of accessible copies from one organisation to another where the second organisation then distributes the accessible copies to visually impaired people. The overall conclusion is that in many countries it is far from clear what distribution methods are possible. It does, though, need to be remembered that some types of “distribution” may not fall within the scope of acts that are restricted by copyright, such as some or all acts of lending and interlibrary loans. What is possible in any country will therefore depend on how the acts restricted by copyright are defined as well as what is permitted by exceptions to rights. If there is, though, a lack of clarity regarding activity taking place within a country, then it may be even more doubtful that organisations, such as libraries for the blind, in those countries will be able to export accessible copies they have made, or import accessible copies made elsewhere for distribution to visually impaired people in their countries.

Even in countries where at least some distribution of accessible copies is clearly possible, there is a need to consider provisions in national laws specifically directed at the act of exporting or importing copies of a work. The act of exporting or importing as such is not a separate right that must be granted to right holders in order to comply with international conventions and treaties, but nevertheless some countries do make provision in this area in addition to rights covering distribution. However, specific rights to control exports are much less common than ones to control imports. The act of exporting does, though, probably fall within the scope of a distribution right. For exceptions that permit distribution, it may, therefore, be legal to export an accessible copy (by whatever distribution means are permitted by the exception of the exporting country) to a visually impaired person in another country, so long as any conditions are met, such as it is known that the visually impaired person satisfies the definition of the end beneficiary in the law of the exporting country.

Exporting is only half of what needs to be considered. It seems reasonable to assume that the act of exporting must be tested against the law in the country from which the accessible copy is being exported. However, the country in which the recipient of the accessible copy resides may make provision in its law governing what may, or may not, be imported. The act of importing will need to be legal as well as the act of exporting. It seems reasonable to assume that it will be the law of the country into which the accessible copy is being imported that will be relevant here. There are more countries that make provision limiting importation both of copies made illegally and copies made without the authorisation of the right holders. The latter would seem to include copies made quite legally under an exception. Nevertheless, there are quite a large number of countries that do not seem to restrict personal imports, and arguably a copy sent from one country direct to an individual visually impaired person in another country is a personal import. It may therefore be that there can be quite a lot of international movement of accessible copies direct to visually impaired people which is legal, but it may not be that easy to be certain of this and it is always likely to require two different copyright laws to be interpreted.

Export and import of accessible copies from and to organisations, such as libraries for the blind working in different countries, is likely to be more complicated. The actual transfer between the organisations may not be an act of distribution, but it may be caught by provisions applying to exports and/or imports. Moreover, passing an accessible copy to another organisation may fall outside the scope of an exception and distribution to visually impaired people by the receiving organisation of any copies it receives from abroad may not fall within the scope of the exception in the receiving country. Chapter 3 has, however, noted some countries where at least some activity may be possible. Moreover, case study 11 of Chapter 5 shows how a combination of legislative provision and agreement with publishers seems to have brought more clarity to the international transfer of accessible copies and case study 12 of Chapter 5 shows how legislative changes being considered might ease the situation.

6.6.3 Legislative changes in national law

The new provision on an exception to copyright for the benefit of visually impaired people in the WIPO draft copyright law that has been mentioned earlier does address the desire to ease the cross border movement of accessible copies. However, as can be seen from Chapter 3 and the above analysis, the factors that are relevant to the import and export of accessible copies are complex. Countries wishing to deliver the result expressed in the second paragraph of the proposed exception in the draft law123 may need to consider whether this will actually work to make things better very carefully. For example, it may not work if import and export provisions still exist in the laws of the importing and exporting countries as the reference to “distribution” may only cover what happens within a country. Also, the importing country may not readily know whether the conditions in the first paragraph have been fulfilled in the exporting country. And, indeed, it may be that some of the conditions must be fulfilled in the importing country too.

For some countries, there could be a particular problem with an exception that is limited to reproducing works that have been “published”. For countries that provide for international exhaustion of the right given to copyright owners to decide whether a copy should be published, it may not be a problem. A copy that has been published with the consent of the right holder anywhere in the world can probably be brought into the country perfectly legally and so the work may also counts as “published” in that country even if the copyright owner has not published any copies in that country. Thus, even if a work must have been “published” in both the exporting and importing country, so long as a work has been “published” in the country where the accessible copy has been made, then it may also count as “published” in the country into which the accessible copy is being imported.

The position is very different for countries that do not provide for international exhaustion of rights. International conventions and treaties do, of course, make it clear that countries are free to decide what provision they make in this respect. Right holders may therefore quite legally have published a work in one country which is not yet available to the public in another country and importation of an accessible copy of the published work from the first country to the second could be illegal if an exception in the second country only applies to published works. What provision is appropriate regarding distribution of accessible copies made abroad where a country does not provide for international exhaustion of rights may, therefore, need to be considered very carefully. It would be necessary, for example, to decide to what extent a provision in copyright law should permit accessible copies made in another country to be circulated, even on a not-for-profit basis, and even where they benefit visually impaired people, but where there are no copies in normal circulation within the country.

The World Blind Union has justified provision permitting export and import of accessible copies to enable access to the world stocks of accessible copies because of the acute shortage of accessible materials. This is very understandable, but it also seems sensible to ensure that any legislative provision is carefully and sensitively drawn, taking into account how it relates to provision on exhaustion of rights in particular.

6.6.4 Online delivery

In the above discussion, the concepts are largely ones that make sense where there are physical copies. These copies may be books printed on paper, or they may be digital copies on discrete carriers such as CDs and DVDs. Of course, increasingly works are published online and distributed by communication to the public. It is, moreover, very likely that the desire for ease of movement round the world of accessible copies for visually impaired people is also increasingly likely to effectively equate with electronic dissemination of those copies rather than physical movement. This is not surprising and is, presumably, exactly the sort of thing the DAISY standard aims to facilitate. However, it does mean that any legislative provision needs to be tested against exactly what is encompassed by the communication to the public right and in which countries which activity must be judged. It also means that publishers would need to be especially reassured that any electronic transmission of very valuable electronic copies of their works would be handled securely by those who understand the importance of this.

6.6.5 Alternative approaches

Although legislative solutions to the difficulties with moving accessible copies between countries are probably not impossible to deliver, there do seem to be some very difficult issues that need to be addressed. Moreover, the wide variation in provision in specific exceptions for the benefit of visually impaired people in national copyright laws could make useful provision difficult to deliver in the short term.

A better solution might therefore be to build on the positive and useful work that has taken place in some countries to clear rights to permit international exchange of accessible copies. This could provide more effective and less complex answers to issues like how to deal with different countries’ provisions on exhaustion of rights. Indeed, even where a work has been published in two countries, it may not always have quite the same content, as has been noted for example in case study 11 of Chapter 4. It might be difficult to make legislative provision that permits the slightly different parallel edition to be imported because it already exists in an accessible form in another country, but an agreement with publishers might readily permit this.

Licensing is discussed in more detail below, as it may well provide effective solutions to other problems too. Some of these are, though confined to individual countries so that national licensing arrangements may be appropriate. However, for international exchange of accessible copies, it may be better to engage stakeholders at the international level. The World Blind Union together with the IFLA Libraries for the Blind Section are the obvious stakeholders to represent the interests of visually impaired people and those, such as libraries for the blind, making accessible copies. It may be that as well as the International Publishers Association, it would be sensible to explore whether the International Federation of Reprographic Rights Organisations (IFFRO) is able to deliver collaboration between national RROs, which may be well placed to facilitate collective licensing of the necessary rights, especially as they represent publishers as well as authors and other rights holders. As with any licensing arrangements, successful outcomes are more likely if an environment of trust and mutual understanding of everyone’s needs can be created. At the international level, it may therefore be appropriate for WIPO to facilitate discussions, at least initially.

6.7 Alternatives to exceptions to facilitate non-profit accessible format production

6.7.1 Licensing/trusted intermediaries

Licensing to permit activity for the benefit of visually impaired people is likely to be helpful both to cover what happens within a country and, as discussed above, how accessible copies might move between countries. This is likely to be the case even where legislative provision provides for much useful activity. In the case studies, a number explore what is happening in countries that have reasonably good provision of copyright exceptions, but where licensing arrangements are still permitting other useful activities. The problem with licensing is, of course, that it is not always easy to find or engage with the right copyright owners and more useful blanket or collective licensing agreements are not always possible.

One case study, namely in case 3 of Chapter 5, may provide an interesting model to encourage right holders to engage with the process of licensing, but at the same time remove barriers that prevent alternative format production for visually impaired people. In that case a new exception for the benefit of visually impaired people has been provided but it is possible for right holders to establish a licensing scheme that overrides the exception. If a licensing scheme exists, then accessible format production must take place under that, thus giving right holders the ability to retain control over use of their copyright works. They are, however, specifically prevented from establishing a licensing scheme that is more restrictive than what can be done under the exception. Whereas most exceptions to copyright do mean that right holders lose control over use of their works, this model avoids this. Right holders are able to retain control if they want. There is in effect an incentive for right holders to engage with those who would otherwise be able to act under the exception. In fact right holders have opted to set up licensing arrangements and these have, moreover, in some respects delivered more generous provision for the benefit of visually impaired people than the exception. The relationships and trust that have been established as a result of licensing are now being built upon to try and resolve issues such as access to the publishers’ e-files for those making accessible copies.

Where countries feel it is appropriate to introduce or amend exceptions to copyright for the benefit of visually impaired people, they may, therefore, want to devise approaches that can work alongside licensing rather than act against licensing. Licensing, or licensing in combination with exceptions, may well be capable of delivering more useful assistance to visually impaired people than exceptions alone can deliver. Collective licensing in particular is clearly a helpful way to resolve many of the difficulties with reaching agreement on licensing that have been identified in case studies in Chapter 4. Seeking permission is a cumbersome process for those acting to assist visually impaired people by making accessible copies. But it is a cumbersome and time-consuming process for right holders too, especially if, as is often the case, they eventually give permission free of charge. Collective licensing therefore benefits, and is trusted by, publishers as well as users of copyright material.

Case study 4 of Chapter 5 illustrates progress that is being made to get better access to publishers’ electronic files in order to make it easier to produce alternative format material. A charity that in particular makes Braille and audio books has been working with the Reprographic Rights Organisation (RRO) in the country to obtain access to electronic files of books and journals used in higher education. Under the agreement now being finalised, the RRO will establish a databank of electronic files from publishers. This will be accessible to facilitate the production of alternative format material, with suitable security features built in to properly protect the interests of right holders. However, the RRO also benefits from the electronic database as it will be able to use it to modernise its licensing of photocopying more generally.

Whilst collective licensing may be the ideal both at national and international levels, it may be that in the short term some of the difficulties and delays in seeking permission could be solved by other means. Publishers are often approached by more than one organisation wishing to make, distribute, import or export an accessible copy or gain access to an electronic file. This must be confusing for everyone, but particularly the publisher who may think he has already given permission. Publishers may find it easier if organisations seeking permission use a standardised permission request form and if an agreement for producing/using/importing/exporting accessible formats or for acquiring and using an e-text also takes a standardised form. If may be that this is a role for the World Blind Union, the DAISY Consortium and IFLA Libraries for the Blind Section to develop at an international level, or the equivalent bodies at national level. It would, of course, make sense for any standardised texts in due course to be discussed and agreed with right holders’ organisations, and they would no doubt welcome this engagement if the groups working for visually impaired people are able to ensure that standardised texts once agreed are actually used by all.

6.7.2 Role of libraries including for import/export of accessible copies

Whilst national licensing arrangements for national activity might be the easiest to agree in the short term, there is no reason why in the longer term even national activity to produce accessible formats could not be done under a more international arrangement. Import and export of accessible copies would clearly be easier with an international arrangement. One of the keys to any licensing arrangement is, though, as has already been said, the development of trust. Right holders need to be reassured that those making alternative formats control their circulation responsibly and protect copyright appropriately.

The libraries that come under the umbrella of the IFLA Libraries for the Blind Section can clearly have a very important role in this respect. The use of the word “library” to describe these organisations may be a little misleading. These libraries are major producers of accessible material as well as having more usual library functions in giving visually impaired people access to this material. They have much knowledge about copyright. They are well placed to ensure that libraries use the same standards to facilitate interlibrary loan. Standards and security measures need to be developed side by side and internationally rather than nationally so security features work, but they do not frustrate interlibrary loans. At some point, of course, standards and security features need to be discussed with right holders as they are more likely to agree appropriate arrangements to facilitate interlibrary loans and subsequent provision of accessible copies to visually impaired people if these features meet their concerns about misuse of electronic copies.

The libraries can also make sure that data on what accessible titles exist is shared internationally. And they can also record data about use and circulation of accessible copies. Indeed, the suggestions made at the WIPO Information meeting by the representative of the IFLA Libraries for the Blind Section 124have a lot to commend them. These can be summarised as follows:

- create a trusted environment for controlled circulation, fair use and protection of IP

- report on use and circulation

- co-operate in the field of developing IP protection mechanisms

- consult and cooperate in “publishing for all”

6.8 Awareness

In a number of places the issue of appropriate awareness and understanding has already been mentioned. Some initiatives to address this will obviously need to be geared to particular national circumstances. But it may be that WIPO could undertake some activity, or some more activity building on what is already being done, to assist with the development of suitable awareness amongst some constituencies. The following are the main stakeholder groups that might need to be targeted:

- Governments: Several of the case studies, such as1, 2, 3 and 5 of Chapter 4, illustrate the importance of awareness about copyright and the needs of visually impaired people in governments. In developing countries in particular, as has been noted above, there may in many cases be less balance in copyright laws than in developed countries. WIPO may have a particularly important role in ensuring that governments understand the issues. This can sometimes be difficult where copyright policy is developed by one ministry, perhaps that leading on trade and investment policy, without input from other ministries leading on things like education and social exclusion.

- Publishers: Some publishers might benefit from greater awareness of the needs of visually impaired people, particularly so that they are more likely to develop material in accessible formats themselves, but also so that they understand and trust the role of licensing, and respond positively to licensing requests and requests for access to e-files. It may be useful to develop a toolkit covering the key issues that those who need to engage with publishers can draw on as necessary.

- Technology and software producers: Although there are some good examples of high levels of awareness of the needs of visually impaired people amongst this group of stakeholders, this is probably not uniform. There is a need for better awareness of the issues here so that new technology is developed with accessibility in mind from the outset, but also taking into account the security needs of publishers. Security solutions must work so that new technology and software used by publishers makes copyright works available in a way that is both fully accessible but safely secure.

- Libraries/organisations making accessible formats: These organisations must be fully aware of their own roles as publishers, but also as the guardians of the valuable copyright owned by right holders. It may be appropriate to improve mechanisms for knowledge sharing about copyright and alternative format production as well as the benefits of collaboration, both with each other and with publishers and technology/software producers. Case study 2 of Chapter 5 illustrates awareness raising activity particularly directed at transition and developing countries which may be an area where particular additional efforts are needed for this constituency.

- Visually impaired people: Case study 8 of Chapter 4 about the experiences of a visually impaired person illustrates that visually impaired people also need to have greater awareness about various issues. That case study illustrates the usefulness of self-help blogs to better understand the relevant technology. However, it may be that governments should take more of a lead in making sure that visually impaired people know what they can and cannot do under exceptions to copyright and also how they might best utilise the technology available.

6.9 Digital rights management

This study has not examined in detail the use of DRMs to protect digital content and the relationship with copyright and exceptions to rights. It is clear that content creators generally recognise the role of DRMs to protect their content against unauthorised use which in the digital environment is all too easy to use in ways that can be very damaging to a right holder’s ability to obtain a return on their investment in content creation. On the other hand, users of protected content are often concerned that DRMs lock up content to deny use which they argue should be possible. This may or may not be use that falls within the scope of permitted exceptions to rights and the distinctions here are not always readily appreciated by users.

Much has already been written about these issues so it is not proposed to go into enormous detail in this Study. In particular two recent WIPO Studies that have looked at issues surrounding DRMs have already been mentioned. The Study on Automated Rights Management Systems and Copyright Limitations and Exceptions concludes that there do not exist any DRM systems capable of automating the full range of rights management processes customarily required by copyright law. In other words, it is not possible for DRMs to provide for the full range of exceptions to rights.

Of course some countries do provide legislative solutions to deal with the relationship between DRMs and exceptions such as those for the benefit of visually impaired people, but it is probably too early to tell how effective these might be. Designing a DRM to permit use under an exception for the benefit of visually impaired people might in some ways be easier than for some other exceptions as it must permit use of the whole work rather than just a certain proportion as under a fair use or fair dealing exception. There would still be a problem knowing whether the use is by or for a visually impaired person rather than someone else though. It may be that it is more realistic for a DRM to be made, however, that permits text to be read out by speech recognition software or converted to a refreshable Braille display, but not anything else. Whether this would provide sufficient accessibility for a visually impaired person is something that all stakeholders, including those developing technology, need to discuss. Where a work is only published in a digital form protected by DRM it may be reasonable to limit what a visually impaired person can do with that work just as DRM will limit what a person without any impairment can do. For example, perhaps there is no reason to permit a visually impaired person to have access to a paper Braille or large print copy any more than a sighted person has a paper copy of the text that has only been published electronically protected by DRMs.

WIPO could certainly facilitate further study of and collaboration on the difficult issues raised by DRMs and enjoyment of exceptions for the benefit of visually impaired people. It may be that by pinpointing the problems and possible solutions for one very specific exception such as this, wider solutions to the way forward where there is an interaction between DRMs and exceptions might be found.

6.10 Cost of accessible copies

The World Blind Union has made a case for visually impaired people to have access to the same material as their fellow citizens at no additional cost to the individual. It is not the purpose of this Study to explore who should pay for the cost of making accessible copies where there are solutions to the copyright restrictions that might otherwise prevent this. This is, though, clearly an issue that needs to be considered as there can certainly be significant costs in making accessible copies.

However, it is worth exploring in this Study to what extent right holders should be expected to forego the chance to claim copyright royalties for any accessible copies made. Also, and linked to how copyright is exercised by right holders, it is right to cover in this Study the extent to which right holders who make accessible copies available themselves should be able to charge what they consider to be an appropriate amount to get a reasonable return on that investment, even if this means that it costs more to buy an accessible copy than an inaccessible copy.

A number of countries that do have exceptions to copyright for the benefit of visually impaired people do combine them with mechanisms by which right holders can be or are paid a royalty for any accessible copies made. Other countries have exceptions that do not require such a payment. There does not seem to be anything inherently wrong with either approach. In general the exception provision that has been made is governed by the 3-step test but this does not necessarily require a royalty payment to accompany an exception. It may, though, be easier to argue compliance with the test in some situations where right holders receive compensation for activity under an exception. Of course, exceptions vary too in the extent of the activity possible. The scope of what is permitted under an exception is likely to be a very important factor in deciding whether or not right holders should receive a royalty. As for any exception, determining the right balance between the interests of right holders and users is difficult with no precise rules about issues such as compensation.

It may be worth making the point, though, that it is not necessarily fair that right holders, by foregoing a copyright royalty on accessible copies, should be expected to help solve the burden of providing visually impaired people with accessible copies at a price that is no more than that paid by the population at large for copies of those works. Copyright is a form of intellectual property that gives the owner of that property a number of rights. An exception takes away from the value of one or more of those property rights in that, when the exception applies, the right can no longer be exercised by the right holder in the area covered by the exception. This may, of course, be perfectly fair to do, and, indeed, exceptions are widely accepted as essential to provide a necessary balance between the interests of right holders and others. But, as with a removal or reduction in value of a physical property right that might be imposed by law, it may in some cases be appropriate for an exception to an intellectual property right to be accompanied by compensation.

Where right holders have exercised the rights under copyright by making accessible copies themselves, these copies will not necessarily be sold at the same price as copies that are inaccessible. Probably the most likely reason for this is that it has been more expensive to make the accessible copies and the right holder is simply setting a price designed to get a return on the investment in making those copies. If this is the case, then once again it is not necessarily wrong for a publisher to set a higher price for accessible copies. In other words, the publisher should not necessarily be expected to undertake this activity at a loss. Indeed, if the publisher cannot obtain a reasonable return on his investment, then he is unlikely to make accessible copies in the first place and that is not particularly helpful to visually impaired people.

Of course, there are other possible approaches to pricing, such as publishers spreading any extra cost of making accessible copies over the price charged for all copies, payment of public subsidies to publishers making accessible copies so that they can charge the same price for all copies, providing visually impaired people with an allowance to cover their extra costs in purchasing accessible copies, or publishing electronic copies that have built in accessibility which are charged at the same price for everyone. Government funding would clearly be involved in some of these options and it may be perfectly reasonable to expect governments to devote some resources to assisting visually impaired people.

There are certain things that might be done to try and reduce costs. Making sure that publishers have a better understanding about the market for various types of accessible copies is more likely to mean they are prepared to invest in the technology and expertise needed to make certain types of copies so that these can be made more efficiently and cheaply. There are some good examples, such as those mentioned in case study 13 of Chapter 5 about the EUAIN Project, where publishers and disability organisations are collaborating so that a good range of accessible copies are made when a new work is published, some made by the publisher, and some made by others.

However, it is unlikely that such collaboration will expand as much as everyone would like if publishers feel they are under an obligation to charge the same price for all copies whatever their cost of production. In this respect, those exceptions for the benefit of visually impaired people in national laws that include a test of both whether or not an accessible copy is commercially available, and also whether that copy is available at an ordinary commercial price, could also provide a disincentive to publishers’ own development of accessible formats if they cannot make an economic return on their investment when charging an “ordinary commercial price”. The ideal might therefore be that visually impaired people should not have to pay more for the copyright works they access than anyone else, but the best way of delivering this and who should pay the cost of this needs to be discussed with an open mind by all concerned.

6.11 Solutions other than non-profit accessible copy production under exceptions and licensing

Although this Study looks in particular at how exceptions to copyright have been provided in national laws, and considers how they might work more effectively, it may be unduly narrow and prescriptive to conclude that copyright exceptions, or licensing of activity similar to what might be possible under exceptions, alone provide all the solutions where people have been prevented from making accessible copies due to copyright constraints. Indeed, without understanding the limitations of a regime with appropriate copyright exceptions, or licensing, in meeting the needs of visually impaired people, it may be difficult to decide the most appropriate way to draw up such exceptions or agree licensing.

6.11.1 “Built-in” accessibility

In addressing their right to read, few visually impaired people want to be treated as a special case. Rather, they would like access to the same material as everyone else at the same time and at the same price as everyone else. In an ideal situation, they do not want to have copyright barriers removed to make, or have someone else make, copyright works accessible from an inaccessible published version. Rather, they want the published version to be accessible to them in the first place.

An ideal scenario might be, therefore, where all published material is published in a form, or different forms, so that it is accessible to people with a print disability. A publisher can build in accessibility from the start in this way in a number of ways. How accessibility might be built in may, of course, vary depending on the nature of the publication that is to be made available to everyone. But the concept of Universal Design is not a new one; for example, it has been considered at the level of the United Nations in the context of accessibility issues much wider than access to the printed word, but including in particular accessibility of websites125.

If a publication takes the form of a digital e-book to be sold on a discrete carrier such as a DVD which in order to be read needs to be loaded into a suitable reader, or as a digital download file that can be copied onto a reader, then it could be designed to be compatible with assistive technologies. Of course, there will still be some visually impaired people who cannot access such a publication, but there will also be some normally sighted people who cannot access the book too. Anyone who does not have access to the right technology for interacting with an e-book would not be able to access an e-book regardless of whether or not they have a visual impairment. If a publisher has, however, chosen to make their publication available only as an e-book, and has made sure that it is fully compatible with the assistive technology widely available to visually impaired people, it might, however, be argued that the publisher has indeed built in appropriate and full accessibility for visually impaired people from the start and there is no further problem that needs to be solved.

It is clear from the case studies, however, that built in accessibility for an e-book may not be as straightforward to deliver as suggested above. Technology changes rapidly and standards are not uniform. Digital rights management that publishers are bound to want to use on their valuable e-publications could cause particular problems. Another particular problem for material that has been published in a language that is spoken by few people in the world is that text-to-speech software even if it exists for that language may not be of such good quality as for widely spoken languages.

It could therefore be all too easy for an e-book to be developed with the intention that it will be completely accessible to visually impaired people, but the practice could be that visually impaired people find that their e-book reader and the assistive technology they have is not the most recent version available and doesn’t work satisfactorily with this new

e-publication. Of course, if the e-book is only compatible with a new reader that everyone must buy if they want access, and the new reader is equipped with the right assistive technology, then visually impaired people are not disadvantaged compared to the general population. But if others are able to rely on their existing equipment and technology to read the new e-book, but visually impaired people are not, they will then not surprisingly argue that the material is not accessible to them. They will argue that it is not reasonable that only they should have to purchase new equipment and technology and say that they are not able to afford to keep pace with the ever changing and different standards of technology and equipment needed to access this latest publication in a way that is accessible to them.

Built in access for visually impaired people right from the start does, nevertheless, seem to be a highly desirable way forward, but stakeholders need to be aware of the problems due to lack of standards, ever-changing technology, use of DRMs and so on, as well as possible solutions, in order to ensure built in accessibility is not just a theoretical solution. In this respect, the work of EUAIN which, as already mentioned, is described in case study 13 of Chapter 5, brings together a range of stakeholders to explore issues such as these. This is perhaps an example of a way forward more generally and work of this nature should perhaps be promoted more widely by governments and international agencies. It seems to be in everyone’s interests that a desire to build in access from the start is both encouraged and facilitated by ensuring that what this requires in practice is widely understood and adopted.

6.11.2 Extension of print on demand

There is currently much debate about new print on demand services that are being developed. The idea that customers are able to go into a shop, or visit a website, to purchase a book that is only printed when their order is received at the moment seems unlikely to replace the advance printing for sale of the most popular books that people want to read. Print on demand will, however, enable titles to be offered to consumers that they might not otherwise have access to, such as out of print publications where there is little demand for the title.

Print on demand is, of course, designed to meet the needs of people who can read normally. What is being offered is a title printed in ordinary typeface on ordinary paper. However, as the concept of print on demand becomes more established, it may make sense to make sure that the opportunities for adapting what is on offer to give greater access to visually impaired people are not missed. At it simplest level, if a visually impaired person requests a copy from a print on demand service, then it would make sense to ensure that it is possible to have the copy printed in large print if this could give access to the visually impaired person. This carries no extra risk for the publishers as the visually impaired customer has exactly the same type of product as the sighted customer, namely text printed on paper.

Extension of print on demand to offer visually impaired customers other types of accessible copy on demand, particularly digital copies, may be more difficult as it will raise concern about whether or not it will be too easy to make illegal copies from those copies. The adoption of Extensible Mark-up Language for computer-based book production purposes does, however, permit the production of a book in more than one format from one digital source. It is likely to offer opportunities to produce different formats, whether Braille, synthetic speech or enlarged typefaces, potentially available on demand. Those developing new business models such as print on demand could certainly explore the extent to which equivalent services could be developed for visually impaired people.

6.11.3 Sharing of e-files/deposit of e-files

Permitting those who produce accessible formats in the non-profit sector under exceptions to rights access to publishers’ electronic files can greatly assist the production of accessible formats. Although one country does appear to have made some provision in this respect in its copyright law, this does not appear to be clearly a copyright problem. This does not mean that a legislative solution is never appropriate though. Indeed, case study 6 of Chapter 5 illustrates how legislation relating to education of people with disabilities is aimed at addressing the production of accessible formats of educational texts from a central deposit of publishers’ e-files. Moreover, case studies 7 of Chapter 4, and 4 and 5 of Chapter 5 specifically look at problems due to lack of access to these e-files and licensing solutions that are being developed to enable access. It would make sense that any activity that looks at licensing issues generally, also considers whether access to publishers’ e-files can be facilitated too. However, all stakeholders do need to be aware that these files are what the International Publishers Association has described as the publishers’ “Crown Jewels”. Any exchange of these files is therefore only likely to be possible in a system built on trust and understanding, with, of course, extremely effective security measures to protect publishers’ interests.

6.12 Audio description

Making accessible formats of films with audio description has not really been covered in detail in this Study. Few countries currently seem to have exceptions to copyright that would permit this. Audio description of the moving image is, of course, important to some visually impaired people. Without some description of what is happening in the film, which is included in the gaps between the normal dialogue in the film, visually impaired people may not enjoy the film as much as someone who is able to see all the action.

If is far from clear that permitting audio description of commercially released films on DVDs by making appropriate provision in an exception to rights is ever going to provide a sufficient solution for visually impaired people. So long as films are released in sequential windows, with the theatrical release in the cinema first, visually impaired people are always going to get the audio described film after everyone else. By far the best solution seems to be to encourage greater commercial availability of audio description, both during theatrical release and with copies made available subsequently on DVDs, on demand and so on. Indeed, many DVDs already include audio description as an option. The problems that have been raised, namely that further modification is still needed to an audio described DVD so that a visually impaired person can actually access the audio description, may be better solved by making sure that those who provide the commercial copies fully understand that this is a need.

Although countries may want to consider whether or not they should provide exceptions that would permit audio description of the moving image when they introduce other exceptions to rights for visually impaired people, it may make more sense to encourage a better understanding of the needs of visually impaired people and so facilitate voluntary solutions to those needs.

6.13 Print disabled people in general

This Study has concentrated on visually impaired people, but many countries make provision that extends to other print disabled people. In many cases those who have a physical disability such as quadriplegia or multiple sclerosis so that they cannot hold or manipulate a book have needs very similar to those of visually impaired people regarding their problems in accessing the written word. They will obviously not find tactile formats useful though. People with a perceptual disability such as dyslexia may also be easy to consider and provide for in a similar way to visually impaired people. In all these groups, there is no desire to have the words of the copyright work modified, although there may be a need to describe accompanying pictures and drawings and provide navigational aids. But essentially the content of the copyright work is not modified; there are only changes to the form of presentation. There is really no threat, therefore, to the moral rights of the author, in particular the author’s integrity right, the right not to have the work subjected to derogatory treatment.

Another group that is covered by exceptions in some countries may be a little different though. People with a mental handicap may need to have the words of a copyright work simplified in order to understand it. This could give rise to concerns about moral rights as well as the economic rights in the copyright work and could therefore raise issues not considered in this Study.

Deaf people do not really have a print disability as they can access the written word, but they will face problems with multimedia material where print is combined with other types of presentation. They may in particular have a need to have audiovisual material subtitled, which could also be difficult due to copyright barriers. Countries may therefore wish to consider whether copyright issues for all disabled people should be addressed as there is probably as much need to do this for these groups of disabled people as for visually impaired people in order to comply with the Standard Rules and draft new UN Convention on the Rights of Persons with Disabilities.

CONCLUSIONS

This Study has brought together a number of issues and ideas that have been discussed and considered in a number of fora over a number of years. However, the analysis of different countries’ laws, and particularly the examination of provisions relevant to the import and export of accessible copies, is hopefully more extensive, and so more helpful, than anything done previously. Of course, fully understanding how countries’ laws are constructed and how they work is exceedingly difficult, and there could be much debate about the accuracy of what is recorded in this Study. This Study has not, though attempted to tabulate the similarities and differences in order to give anyone legal certainty about the copyright framework in any particular country. As has already been said, that has not been possible in this Study and people will need to refer to local experts for that. However, by looking broadly at how different laws might be constructed, it is hoped that a constructive debate about the issues raised in this Study can be taken forward.

The rights and needs of both visually impaired people and those who create, and invest in the creation of, copyright works are equally important, but, as in many areas, a balance needs to be struck between these sometimes conflicting interests. However, the barriers faced by visually impaired people who cannot access the written word are enormous, but fortunately the outlook for solving these problems is in many ways better than in the past. This is in part due to the new opportunities for providing accessibility as a result of technological advances and in part due to the legislative changes and other actions that have taken place in a number of countries in recent years. But problems still remain. Hopefully, it will be easier to find constructive ways forward in this area than in many others as stakeholders of all types generally agree that it is right to aim for a situation where visually impaired people are not unable to read published material because of their visual impairment.

This Study has identified some possible solutions and recommendations in Chapter 6. These are summarized below for ease of reference. In most cases, it is likely that a combination of the possible solutions will be most appropriate. What this combination should be will no doubt require further debate. It is hoped that the debate about what should be done in the light of this Study will, however, lead to more progress in delivering a “right to read” to visually impaired people.

RECOMMENDATIONS

Technology

(a) Collaboration and information exchange needs to be encouraged and facilitated between all stakeholders to ensure that technological developments help to deliver secure access of the written word to visually impaired people. WIPO could have a role in achieving this.

The international framework

(b) International treaties and conventions relating to copyright provide a framework that is complex and confusing for those drawing up exceptions to rights for the benefit of visually impaired people, but they do not oblige countries to make any provision. Further debate is desirable on this issue in the long term.

(c) International agreements relevant to the rights of disabled people may in any case require countries to take the needs of visually impaired people into account when framing their copyright laws.

(d) WIPO could facilitate further discussion about copyright and the rights of disabled people as well as developing its draft model law for developing countries in the light of the recommendations in this Study.

Copyright exceptions in national laws

(e) Exceptions to copyright are never likely to deliver full accessibility to all publications of the written word for visually impaired people, but they may nevertheless be justified until much more material is published in accessible forms. Exceptions need to balance the different interests and not deter the delivery of more comprehensive solutions.

(f) Exceptions of a more general nature, particularly private copying exceptions, may permit some useful activity to provide access for visually impaired people. Governments should consider making sure that self-help activity by visually impaired people to access written material falls within the scope of an exception. They should also consider how to make information available about what self-help activity might be possible under private copying exceptions or otherwise.

(g) WIPO should consider whether any additional action should be taken to make sure that developing countries fully understand the role of exceptions in balancing rights provided by copyright to copyright owners.

(h) Detailed provision in national laws on exceptions to rights for the benefit of visually impaired people should be as useful as possible for visually impaired people, but should also take into account publishers’ concerns. Definitions of the end beneficiaries of exceptions and formats that may be produced are more useful if they are functional and broadly drawn. Exceptions need to permit distribution of accessible copies made, but must not permit digital copies to leak out to the general population.

(i) It may not be necessary for exceptions for the benefit of visually impaired people to be coupled with compensation for right holders, but exceptions which encourage the possibility of licensing arrangements with right holders may help deliver an environment that can build up trust which is useful to solve other problems.

(j) Exceptions do not necessarily need to be the same in all countries, but there might currently be more differences between exceptions than is justified. It would be helpful for WIPO to facilitate a discussion about exceptions in this area, particularly how best to deliver access for visually impaired people without jeopardizing the legitimate interests of rights holders.

Import and export of accessible copies made under exceptions

(k) International conventions do not seem to restrict what provision can be made regarding export and import of accessible copies made under exceptions to copyright. It is very complicated to decide what is currently legal, particularly because the laws of at least two countries need to be considered.

(l) More explicit provision in national laws might be appropriate regarding export and import of accessible copies given the considerable benefit this could bring to visually impaired people, but this could be particularly complicated where countries do not provide international exhaustion of rights. Any provision needs to take into account the needs of right holders as well as any benefits for visually impaired people so as not to deter collaboration to increase world stocks of accessible formats in other ways too.

Alternatives to exceptions to facilitate non-profit accessible format production

(m) Licensing might be a better approach to deliver international exchange of accessible formats and WIPO might be able to facilitate discussions between stakeholders, perhaps involving the International Federation of Reprographic Rights Organisations as well as the International Publishers Association to represent right holders.

(n) Legislative changes should support and encourage licensing arrangements generally as these can deliver additional benefits such as access to publishers’ e-files. However, this is more likely to occur if trust and mutual understanding can be developed. Collective licensing societies such as RROs can have a useful role as intermediaries trusted by all stakeholders.

(o) The development of standard permission requests and standard licence agreements could help even where there is no collective licensing and there could be a role for the World Blind Union, the DAISY Consortium and IFLA Libraries for the Blind Section to make proposals on this for eventual agreement with other stakeholders.

(p) Libraries for the blind have an important role in developing a trusted environment where IP is protected, security mechanisms are developed and standardized and records are kept to facilitate international agreement with right holders on interlibrary loans.

Awareness

(q) It may be appropriate for WIPO and others to undertake activity to raise awareness of the issues addressed by this Study amongst a range of stakeholder groups, including governments, publishers, technology and software producers, libraries and other organisations making accessible formats and visually impaired people.

Digital rights management

(r) How to address the conflict between use of DRMs and exceptions to copyright might be best explored further by looking specifically at exceptions for the benefit of visually impaired people. This can build on work that has already been done on this issue.

Cost of accessible copies

(s) The ideal might be that visually impaired people should not have to pay more to access a copyright work than anyone else, but how to deliver this fairly is more complicated. Provisions in copyright law should not necessarily act against right holders being paid a fair price for use of their copyright works.

Solutions other than non-profit accessible copy production under exceptions and/or licensing

(t) Solutions other than exceptions to rights and licensing of non-profit accessible format production need to be encouraged. Ideally, publishers will increasingly publish accessible formats and new business models such as print on demand should be devised wherever possible with the needs of visually impaired people in mind.

(u) Those making accessible formats are obviously greatly assisted by access to publishers’ e-files, but these are very valuable to publishers and any licensing or other arrangements covering access to them must build in very effective security measures.

Audio description

(v) Audio description of moving image material may be best delivered by voluntary solutions as a result of a better understanding of the needs of visually impaired people.

Print disabled people in general

(w) Extension of exception provisions beyond visually impaired people to other disabled people could be considered, but different approaches might be needed for different types of disability.

ANNEX 1

PRINCIPLE SOURCES OF INFORMATION ABOUT NATIONAL LAWS

The principle sources of information used to identify the content of national laws were:-

- the WIPO collection of laws for electronic access (see https://www.wipo.int/clea/en/index.jsp)

- the WIPO survey of laws of countries which had ratified WCT and/or WPPT by 1 April 2003 (see https://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_6.pdf)

- the collection of national copyright laws provided by UNESCO (see http://portal.unesco.org/culture/en/ev.php-URL_ID=14076&URL_DO=DO_TOPIC&URL_SECTION=201.html)

- the papers relating to the WIPO information meeting on digital content for VIPs, November 2003 (see https://www.wipo.int/documents/en/meetings/2003/digvi_im/digvi_im_03_1rev1.htm)

- the EUAIN summary of exceptions and limitations in EU laws (see http://www.euain.org/modules/wfsection/index.php?category=252)

- the WIPO study on automated rights management systems and copyright limitations and exceptions (see https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=59952)

- the legal reference material published by the Coalition for Intellectual Property Rights (see http://www.cipr.org/legal_reference/index.htm)

- the collection of intellectual property laws published by SICE, the Foreign Trade Information System (see http://www.sice.oas.org/int_prop/ipnale.asp)

- listing by the Harvard Law School of web resources on foreign laws (see http://www.law.harvard.edu/library/services/research/guides/international/web_resources/foreignA.php)

ANNEX 2

FULL ANALYSIS OF SPECIFIC EXCEPTIONS FOR THE BENEFIT OF VISUALLY IMPAIRED PEOPLE IN NATIONAL LAWS

Armenia

Scope regarding end beneficiary

Impliedly limited to those requiring Braille and other specialized formats designed for blind people

Works that may be used

Lawfully disclosed work, but not those created especially in special ways for the blind

Profit/non-profit making activity

Non-profit-making

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

None found

Special formats or any accessible formats

Braille and other special ways for the blind

Compulsory licence or exception

Exception - stipulates no remuneration

Acknowledgement required

Author’s name and source of borrowing

Other conditions

Exception must not conflict with the normal exploitation of the work and must not prejudice the legitimate interests of the right holder

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 13 and 12, Law on Copyright and Neighbouring Rights adopted by the National Assembly on 8 December 1999

Australia126

For each aspect studied, the analysis of the provisions for Australia has been split into three as follows:

1. Making and communicating accessible formats of literary and dramatic works

2. Making accessible formats by facsimile reproduction of published editions

3. Making sound broadcasts of literary and dramatic works

Scope regarding end beneficiary

1. Person with a print disability, either by the provision of assistance by the institution acting under the provision or otherwise. Print disability is defined as a person without sight, a person whose sight is severely impaired, a person unable to hold or manipulate books or to focus or move his or her eyes, or a person with a perceptual disability

2. As for 1

3. Broadcasts are for persons who by reason of old age, disability or literacy problems are unable to handle books or newspapers or to read or comprehend written material as it is to this audience that holders of a print disability radio licence are authorised to broadcast

Works that may be used

1. Literary or dramatic works when sound recordings are made so long as no sound recordings of the work have been published, or, if published, only if satisfied after reasonable investigation that it is not possible to obtain a copy of the recording in a reasonable time and at an ordinary commercial price; published literary or dramatic works when other accessible formats are made, but only if satisfied after reasonable investigation that it is not possible within a reasonable time and at an ordinary commercial price to obtain the particular accessible format to be made. But does not apply to computer programs

2. Published editions of literary or dramatic works or any out of copyright works

3. Published literary or dramatic works may be broadcast

Profit/non-profit making activity

All cases. No limitation found

Permitted/restricted acts covered

1. Reproduction or communication

2. Reproduction127

3. Making of a sound broadcast

Restrictions on who may undertake activity

1. By or on behalf of a body administering an institution assisting persons with a print disability. The Attorney-General may, by notice published in the Gazette, declare an institution to be one assisting persons with a print disability

2. As for 1

3. Person holding a print disability radio licence for those making a sound broadcast

Special formats or any accessible formats

1. Sound recording, Braille, large print, photographic (which means the work produced as a film-strip or a series of separate transparencies) or electronic

2. As for 1

3. Sound broadcast

Compulsory licence or exception

1. Remuneration must be paid to the relevant collecting society for reproduction and communication of literary and dramatic works

2. Exception for reproduction of published editions

3. Exception for making of sound broadcasts but copyright owners can seek equitable remuneration

Acknowledgement required

All. No requirement found

Other conditions

1. For non-electronic copies of literary and dramatic works, must mark copies made and make, retain and send records of activity to collecting society; for electronic copies must give notice to the collecting society with required details of copies made or communicated, must take reasonable steps to ensure that the communication can only be received or accessed by persons entitled to receive or access it (for example, teachers or persons receiving educational instruction or other assistance provided by the relevant institution) and comply with any other prescribed requirements

2. For published editions of works still in copyright, exception only applies where by virtue of 1, reproduction of those works is permitted

3. Must keep records of making of sound broadcast which can be inspected by copyright owners

Overridable by contract

All. No provision found

Interplay with DRMs

1. (and part of 2.) The provisions relating to DRMs that would prevent enjoyment of the exceptions are not applied, subject to certain conditions being met, to supply of a circumvention device or service to a person acting for a body administering an institution assisting persons with a print disability for use for that purpose.

3. No provision found.

Other comments

1. Certain intermediate activity in making and supplying accessible copies is infringement free - institutions assisting persons with a print disability are also permitted, subject to certain conditions, to make a reproduction or communication for use solely in making or communicating reproductions for persons with a print disability

Reference: Copyright Act 1968 as amended up to Act No. 9 of 2006. See sections 47A, 112, Part VB, Division 3, 116A and 10

Austria

Scope regarding end beneficiary

Disabled person

Works that may be used

Published works so long as it is not possible, or it is substantially difficult, on account of their disability for the disabled person to access a published work

Profit/non-profit making activity

Only activity for non-commercial purposes

Permitted/restricted acts covered

Reproduction and distribution

Restrictions on who may undertake activity

None found

Special formats or any accessible formats

Any suitable form which is not met by works already published

Compulsory licence or exception

Appropriate remuneration to be paid to the author

Acknowledgement required

No requirement found

Other conditions

None found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Section 42d of Federal Law on Copyright and Related Rights as amended in 2003

Azerbaijan

Scope regarding end beneficiary

Impliedly limited to those requiring Braille and other specialized formats designed for blind people

Works that may be used

Lawfully disclosed works, but not those created especially in special ways for the blind

Profit/non-profit making activity

Only activity without gainful intent

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

None found

Special formats or any accessible formats

Braille or other special means for the benefit of the blind

Compulsory licence or exception

Exception - stipulates no remuneration

Acknowledgement required

Name of the author and source

Other conditions

Use must not unjustifiably prejudice the normal exploitation of the work and without valid reason violate the legitimate interests of the author

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Article 19.6 of Law on Copyright and Related Rights as entered into force on 8 October 1996

Belarus

Scope regarding end beneficiary

Impliedly limited to those requiring Braille and other specialized formats designed for blind people

Works that may be used

Any work other than those created especially in special ways for the blind

Profit/non-profit making activity

No limitation found

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

None found

Special formats or any accessible formats

Braille or by other special means for the benefit of the blind

Compulsory licence or exception

Exception - stipulates no remuneration

Acknowledgement required

Name of the author and source

Other conditions

Exception must not cause ungrounded damage to normal use of the work or groundlessly restrain legitimate interests of the author (of other right-owner)

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 19 and 17 of the Law on Copyright and Related Rights No. 194-3 of 11 August 1998, as amended up to the Law of the Republic of Belarus No. 183-Z of 4 January 2003

Belize

Scope regarding end beneficiary

People who are hearing-impaired, or physically or mentally handicapped in other ways

Works that may be used

Television broadcasts or cable programmes

Profit/non-profit making activity

Only activity by a body not established or conducted for profit

Permitted/restricted acts covered

Make copies and issue copies to the public for the purposes of providing copies to end beneficiaries

Restrictions on who may undertake activity

Designated bodies

Special formats or any accessible formats

Copies which are sub-titled or otherwise modified for the special needs of the end beneficiaries

Compulsory licence or exception

Exception

Acknowledgement required

No requirement found

Other conditions

None found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Section 83 of the Copyright Act as amended on 31 December 2000

Brazil

Scope regarding end beneficiary

Visually handicapped people

Works that may be used

Literary, artistic or scientific works

Profit/non-profit making activity

Must be done without gainful intent

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Braille or by means of another process using a medium designed for visually handicapped users

Compulsory licence or exception

Exception

Acknowledgement required

No requirement found

Other conditions

None found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Section 46.I(d) of Law No. 9610 of 19 February 1998 on Copyright and Neighboring Rights

Bulgaria

Scope regarding end beneficiary

Impliedly limited to those requiring Braille and analogous specialized formats

Works that may be used

Works that have been disclosed, but not computer programs

Profit/non-profit making activity

Must not be done for gainful purposes

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Braille or another analogous method

Compulsory licence or exception

Exception – stipulates no payment of compensation

Acknowledgement required

No requirement found

Other conditions

The exception must additionally not conflict with the normal exploitation of the work and not prejudice the legitimate interests of the copyright holder

Overridable by contract

No provision found

Interplay with DRMs

Specific provision states that removal, damage, destruction or disruption of technological means of

protection in order to act under the exception cannot be done without the consent of the copyright holder

Reference: Articles 24(1)10, 24(2), 23 and 25a of the Copyright and Neighbouring Rights Act No. 56/29.06 1993 as amended on 1 January 2003

Cameroon

Scope regarding end beneficiary

Blind people

Works that may be used

Works published with the authorization of the author

Profit/non-profit making activity

No limitation found

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Braille only specified

Compulsory licence or exception

Exception

Acknowledgement required

No requirement found

Other conditions

None found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Section 29(1)(g) of Law No. 2000/011 of 19 December 2000 on Copyright and Neighbouring Rights

Canada

Scope regarding end beneficiary

Person with a perceptual disability, that is a disability that prevents or inhibits a person from reading or hearing a literary, musical, dramatic or artistic work in its original format, and includes such a disability resulting from (a) severe or total impairment of sight or hearing or the inability to focus or move one’s eyes, (b) the inability to hold or manipulate a book, or (c) an impairment relating to comprehension

Works that may be used

Literary, musical, artistic or dramatic work other than a cinematographic work and not where a work or sound recording is commercially available in a format specially designed to meet the needs of the person with a perceptual disability

Profit/non-profit making activity

Where an organisation undertakes activity, the organisation must be non-profit making

Permitted/restricted acts covered

Make a copy or sound recording

Restrictions on who may undertake activity

Person at request of person with a perceptual disability or non-profit organization acting for his or her benefit

Special formats or any accessible formats

Formats specially designed for persons with a perceptual disability, but not large print books

Compulsory licence or exception

Exception

Acknowledgement required

No requirement found

Other conditions

None found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Other comments

Exception also permits translation, adaptation or reproduction in sign language, but this is not really relevant to those with a visual impairment

Reference: Section 32 of the Copyright Act (R.S., 1985, c. C-42)

China

Scope regarding end beneficiary

Impliedly limited to those requiring Braille copies

Works that may be used

Published work and specifically applies also to rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations

Profit/non-profit making activity

No limitation found

Permitted/restricted acts covered

Transliteration into Braille for publication in Braille

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Braille only specified

Compulsory licence or exception

Exception – specifically rules out payment of remuneration

Acknowledgement required

Name of author and title of work

Other conditions

Other rights enjoyed by the copyright owner by virtue of the Copyright Law must not be prejudiced

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Article 22 of Copyright Law of the People’s Republic of China as amended up until 27 October 2001

Croatia

Scope regarding end beneficiary

People with a disability

Works that may be used

Disclosed copyright works

Profit/non-profit making activity

Non-commercial activity only

Permitted/restricted acts covered

Use for the benefit of people with a disability, specifically reproduction

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Reproduction in a manner directly related to the disability and to the extent required by the specific disability

Compulsory licence or exception

Exception

Acknowledgement required

No requirement found

Other conditions

Uses under the exception must not conflict with normal exploitation of the work or unreasonably prejudice the legitimate interest of the author

Overridable by contract

No provision found

Interplay with DRMs

Those applying DRMs are obliged to provide special measures or conclude contracts so that the exception can be enjoyed (except in respect of computer programs and works made available on demand on agreed contractual terms). If right holders fail to comply, use will be by the application of measures provided by the Minister.

Reference: Article 86, 80 and 98 of Copyright and Related Rights Act of 2003

Czech Republic

Scope regarding end beneficiary

People with a disability

Works that may be used

Published work

Profit/non-profit making activity

Non-commercial activity

Permitted/restricted acts covered

Reproduction and distribution

Restrictions on who may undertake activity

Anyone who makes, or has made, a reproduction for the benefit of a person with a disability

Special formats or any accessible formats

Reproduction to the extent required by the specific disability

Compulsory licence or exception

Exception

Acknowledgement required

No requirement found

Other conditions

Use of copies made for any other purpose specifically forbidden. Also activity under the exception must not conflict with a normal exploitation of copyright or unreasonably prejudice the legitimate interests of the author.

Overridable by contract

No provision found

Interplay with DRMs

The provisions protecting use of DRMs must specifically not be prejudiced by the exception

Reference: Articles 37(2)(c), 29, 30 and 43-45 of Law No. 121/2000 Coll. of 7 April 2000

on Copyright, Rights Related to Copyright and on the Amendment of Certain Laws as amended to 21 January 2005

Denmark

Scope regarding end beneficiary

Blind, visually impaired and deaf people, people suffering from a speech impediment and people unable to read printed text on account of a handicap

Works that may be used

Published works

Profit/non-profit making activity

Activity for commercial purposes not permitted

Permitted/restricted acts covered

Use such as reproduction and distribution, which includes communication to the public, but not distribution by rental

Restrictions on who may undertake activity

Activity possible by visually impaired and other specified disabled people themselves, institutions that assist such people as their particular purpose and other bodies so long as they specifically arrange for use to be by visually impaired and other specified disabled people.

Special formats or any accessible formats

Use specifically intended for those with the disability

Compulsory licence or exception

Exception except for making of sound recordings which can only be made for lending and are subject to remuneration to the author and making of sound or visual recordings of broadcast works which must come under an extended collective licence.

Acknowledgement required

Indication of source required

Other conditions

In order to counteract piracy rights to use lapse if an acquired copy is made available to the public. Also, there must be no more alteration of the work than that required for the permitted use.

Overridable by contract

No provision found

Interplay with DRMs

Request to Copyright License Tribunal can be made where DRMs prevent enjoyment of exception and circumvention may be possible where Tribunal order not complied with, but does not apply to works made available on demand under agreed contractual terms

Other comments

Copies made may be acquired by others and further copies may be made, including back-up copies, but only if all activity is necessary for use by the acquirer and as limited by use for those with the disability.

Reference: Sections 17, 11 and 75c of the Copyright Act consolidated in Act No. 164 of 12 March 2003

Dominican Republic

Scope regarding end beneficiary

Blind and other handicapped people

Works that may be used

Scientific, literary or artistic works

Profit/non-profit making activity

Must have non-profit making aims

Permitted/restricted acts covered

Communication to the public

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Reproduction not permitted so no accessible formats can be made

Compulsory licence or exception

Exception

Acknowledgement required

The author’s name; the title and other data to identify the work

Other conditions

The exception must not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the copyright owner

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 44, 30 and 31 of Law No. 65-00 on Copyright of 21 August 2000

El Salvador

Scope regarding end beneficiary

Blind and other handicapped people

Works that may be used

All works of the mind including literary, scientific, artistic, musical and dramatic works

Profit/non-profit making activity

People must attend communication free of charge and remuneration to those involved in the event not permitted

Permitted/restricted acts covered

Communication to the public only where end beneficiaries present at place of communication

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Reproduction not permitted so no accessible formats can be made

Compulsory licence or exception

Exception – stipulates no remuneration

Acknowledgement required

No requirement found

Other conditions

None found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Article 44 of the Law on the Promotion and Protection of Intellectual Property, (Decree No. 604 of 15 July 1993)

Estonia

Scope regarding end beneficiary

Blind people

Works that may be used

Works made available to the public except those created especially for the blind

Profit/non-profit making activity

Use must be for a non-commercial purpose

Permitted/restricted acts covered

Reproduction and distribution

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Braille or another technical manner for the blind

Compulsory licence or exception

Exception – stipulates no remuneration

Acknowledgement required

Name of the author, title of the work and source of the publication must be acknowledged

Other conditions

Activity must not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the author

Overridable by contract

No provision found

Interplay with DRMs

Right holders must adjust their application of DRMs to permit uses permitted by exception where a person has legal access to the protected work. Any failure to reach agreement with right holders about use under the exception can be referred to the Copyright Committee for a decision, but anyone disagreeing with that decision can refer the matter to the courts.

Reference: Sections 19, 17, 803 and 87 of the Copyright Act of 11 November 11 1992, as last amended by the Act of 29 October 2004

Fiji

Scope regarding end beneficiary

People who are hearing-impaired, or physically or mentally handicapped in other ways

Works that may be used

Television broadcasts or cable programmes

Profit/non-profit making activity

Only activity by a body not established or conducted for profit

Permitted/restricted acts covered

Make copies and provide copies to end beneficiaries

Restrictions on who may undertake activity

Designated bodies

Special formats or any accessible formats

Copies which are sub-titled or otherwise modified for the special needs of the end beneficiaries

Compulsory licence or exception

Exception

Acknowledgement required

No requirement found

Other conditions

None found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Section 185 of the Copyright Act 1999

Finland

Scope regarding end beneficiary

Visually impaired people and, for lending of sound recordings, also people who, because of some other physical disability or illness, are unable to use books in the conventional manner

Works that may be used

Published literary or musical works

Profit/non-profit making activity

No limitation found

Permitted/restricted acts covered

Reproduction – making copies; lending for sound recordings

Restrictions on who may undertake activity

No restriction other than for making copies by sound recording which is limited to institutions defined by decree

Special formats or any accessible formats

Text readable by visually impaired persons

Compulsory licence or exception

Exception

Acknowledgement required

General requirement to name author on copies made and also source; name of the author and performer specifically required for talking books

Other conditions

The work must not be altered more than necessitated by the permitted use

Overridable by contract

No provision found

Interplay with DRMs

No provision found128

Reference: Articles 17 and 11 of the Copyright Act, as amended on 9 October 1998

France

Scope regarding end beneficiary

People with a motor, psychological, hearing or visual disability which must be at least 50% assessed against specified relevant standards

Works that may be used

A work that has been disclosed

Profit/non-profit making activity

Use on a non-commercial basis

Permitted/restricted acts covered

Reproduction and performance for the personal use of the end beneficiaries

Restrictions on who may undertake activity

Disabled people or organisations listed by the relevant administrative authority.

Special formats or any accessible formats

Use to the extent consistent with the nature of the disability

Compulsory licence or exception

Exception

Acknowledgement required

No specific provision for this exception

Other conditions

The organizations undertaking the activity must provide proof of their activity in a number of specified ways

Overridable by contract

No provision found

Interplay with DRMs

Except for works made available on demand on agreed contractual terms, right holders are required to take measures to ensure effective implementation of the exception where the beneficiaries have lawful access to the work and the exception does not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the right holders. Also an Authority is established to regulate, and to provide conciliation and adjudication, regarding the interaction between DRMs and exceptions, with recourse to the courts if necessary

Other comments

Electronic copies of books to be used by those entitled to act under the exception may be required to be deposited by publishers as specified by decree with guarantees for the confidentiality of the files and security of access

Reference: Articles L122-5 and L331-5 to L331-21 of the Intellectual Property Code as amended to 1 August 2006

Gabon

Scope regarding end beneficiary

Reference to “welfare purposes” could permit assistance to people with a disability, including people who are visually impaired

Works that may be used

Work lawfully made available to the public

Profit/non-profit making activity

Activity that is free of charge necessary

Permitted/restricted acts covered

Communications which includes performance, broadcasting and communication to the public by other means

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Limited to activity strictly for welfare purposes

Compulsory licence or exception

Exception

Acknowledgement required

No requirement found

Other conditions

None found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Article 33 of Copyright Law

Georgia

Scope regarding end beneficiary

Impliedly limited to those needing relief dotted print or other special means for blind people

Works that may be used

Lawfully published work other than those specially created for use by blind people

Profit/non-profit making activity

No specific limitation found

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Relief dotted print or other special means for blind people

Compulsory licence or exception

Exception – stipulates no royalty payment

Acknowledgement required

Author’s name and source must be acknowledged

Other conditions

In addition activity must not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the copyright holder

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 23 and 18 of Law of Georgia on Copyright and Neighbouring Rights

Germany

Scope regarding end beneficiary

Disabled people

Works that may be used

Works where there is not an accessible version already available

Profit/non-profit making activity

Activity must be on a non-commercial basis

Permitted/restricted acts covered

Reproduce and distribute

Restrictions on who may undertake activity

None found

Special formats or any accessible formats

Formats accessible to disabled persons to the extent required by the specific disability

Compulsory licence or exception

Exception for making single copies; otherwise appropriate remuneration to be paid to the author

Acknowledgement required

Indication of source required

Other conditions

None found

Overridable by contract

Contractual conditions which prevent enjoyment of exceptions are void.

Interplay with DRMs

Right holders must assist beneficiaries of exception to enable use as permitted. Beneficiary, or associations of disabled persons, may sue right holder who refuses to exercise this duty, but sanctions when this happens are limited to injunctive relief; an administrative fine is also possible. Provision does not apply to works made available on demand on agreed contractual terms.

Reference: Articles 45a, 63 and 95b of Copyright Act as amended on 10 September 2003

Greece

Scope regarding end beneficiary

Blind and deaf-mute people

Works that may be used

A work

Profit/non-profit making activity

Only non-commercial uses

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

None set out but could be imposed by ministerial resolution

Special formats or any accessible formats

Formats directly related to the disability and specifically required by the disability

Compulsory licence or exception

Exception, although compensation could be required by ministerial resolution

Acknowledgement required

No requirement found

Other conditions

The Minister of Culture may by resolution determine further conditions. Also activity must not conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the right holder

Overridable by contract

No provision found

Interplay with DRMs

In the absence of voluntary measures, lack of enjoyment of exception due to DRMs should be settled by mediation or dispute is settled by Court of Appeal, but provision does not apply to works provided on demand on agreed contractual terms

Other comments

The Minister of Culture may by resolution apply the provision to other categories of disabled people

Reference: Articles 28A, 28C and 66A of Law 2121/1993 as amended to 10 October 2002

Hungary

Scope regarding end beneficiary

Disabled persons

Works that may be used

A work that has been disclosed to the public

Profit/non-profit making activity

Non-commercial activity only

Permitted/restricted acts covered

Reproduction and distribution

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Exclusively designed to satisfy the needs of disabled persons

Compulsory licence or exception

Exception – free use specified

Acknowledgement required

No requirement found

Other conditions

Use must not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the author, and it must be in compliance with the requirements of fairness and not designed for a purpose incompatible with the intention of free use. Also, the provisions relating to free use shall not be interpreted in an extensive manner.

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 41(1) and 33 of Act No. LXXVI of 1999 on Copyright as amended in 2001

Iceland

Scope regarding end beneficiary

Impliedly limited to visually impaired people

Works that may be used

Published literary or musical works

Profit/non-profit making activity

No specific limitation found

Permitted/restricted acts covered

Printing and publishing

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Braille only and must not be altered more than necessary in order to reproduce

Compulsory licence or exception

Exception

Acknowledgement required

Where a work is made public, the source and name of the author must be acknowledged as appropriate

Other conditions

Activity must not prejudice the rights of the author and the work may not be altered more extensively than is required for the purposes of reproduction

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Other comments

Works may also be photographed in schools for people with speech and hearing impediments

Reference: Articles 19 and 26 of Copyright Act No. 73 of 29 May 1972 as last amended by Act No. 60 of 19 May 2000

Indonesia

Scope regarding end beneficiary

Blind people

Works that may be used

Scientific, artistic and literary works

Profit/non-profit making activity

Must not be for a commercial purpose

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Braille only

Compulsory licence or exception

Exception

Acknowledgement required

Source must be fully cited

Other conditions

None found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Article 15d of the Law of the Republic of Indonesia Number 19 Year 2002 Regarding Copyright

Ireland

Scope regarding end beneficiary

A person who has a physical or mental disability

Works that may be used

A work

Profit/non-profit making activity

A designated body must not be established or conducted for profit

Permitted/restricted acts covered

Make and supply copies and adaptations

Restrictions on who may undertake activity

A body designated by the Minister

Special formats or any accessible formats

Modifications to meet the special needs of a person who has a physical or mental disability

Compulsory licence or exception

Exception

Acknowledgement required

No provision found

Other conditions

Where a copy made under the provision is later made available to the public such as by selling, renting or lending, it becomes an infringing copy

Overridable by contract

No provision found

Interplay with DRMs

Protection of DRMs must not prevent enjoyment of exception and circumvention of DRM to enjoy exception permitted

Reference: Sections 104, 106 and 374 of Copyright and Related Rights Act, 2000

Italy

Scope regarding end beneficiary

People with a disability in categories as defined by Ministerial decree

Works that may be used

Works and protected subject matter

Profit/non-profit making activity

Only activity of a non-commercial nature

Permitted/restricted acts covered

Reproduction and communication to the public

Restrictions on who may undertake activity

None specified, but could be set by Ministerial decree

Special formats or any accessible formats

Acts directly related to the disability and only to the extent required by the disability

Compulsory licence or exception

Exception, although remuneration could possibly be set by Ministerial decree

Acknowledgement required

No specific requirement found, although could be set by Ministerial decree

Other conditions

As well as defining applicable disabilities, the criteria to be used to identify beneficiaries as well as other conditions applying to the exception can be set by Ministerial decree. Also, where works or other subject matter are made available on demand, the exception must not conflict with the normal exploitation of the work or subject matter and must not unreasonably prejudice the right holders.

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Article 71bis and 71nonies of the Law for the Protection of Copyright and Neighbouring Rights, as amended on 9 April 2003

Japan

For each aspect studied, the analysis of the provisions for Japan has been split into two as follows:

1. Making Braille copies/records and sound recordings for visually handicapped people

2. Making large print copies from school textbooks for visually handicapped children and pupils

Scope regarding end beneficiary

1. Visually handicapped people

2. Visually handicapped children or pupils

Works that may be used

1. A work that has been made public

2. School textbooks

Profit/non-profit making activity

1. No limitation found, but establishments designated by Order for the purposes of making sound recordings could be limited

2. No limitation but distribution of large print textbooks for profit-making purposes is subject to compensation

Permitted/restricted acts covered

1. Reproduction and public transmission but not broadcasting or wire diffusion for Braille copies/records; making and lending for sound recordings

2. Reproduction and distribution

Restrictions on who may undertake activity

1. No restriction for Braille copies/records; Braille libraries and other establishments for the promotion of the welfare of the visually handicapped, designated by Cabinet Order for sound recordings

2. No restriction found

Special formats or any accessible formats

1. Braille, including electronically recorded Braille; sound recordings

2. Large print

Compulsory licence or exception

1. Exception

2. Exception for non-profit-making activity; subject to compensation to the copyright owners as fixed by the Commissioner of the Agency for Cultural Affairs for profit-making activity

Acknowledgement required

1. Indication of the source, including name of the author required

2. Indication of the source, including name of the author required

Other conditions

1. No other conditions found

2. Provision limited to making large print copies for the purposes of study by the visually handicapped children or pupils. Publisher must be informed of intention to make reproductions in the form of a textbook in large print

Overridable by contract

1. and 2. No provision found

Interplay with DRMs

1. and 2. No provision found

Reference: Articles 37, 33bis and 48 of Copyright Law as amended to 9 June 2004

Kazakhstan

Scope regarding end beneficiary

Impliedly limited to those requiring Braille or other special formats used by blind people

Works that may be used

Works except those created in special formats for blind people

Profit/non-profit making activity

Activity must be without gainful intent

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Braille or other special means for the benefit of blind people

Compulsory licence or exception

Exception – stipulates no remuneration

Acknowledgement required

Author’s name and source must be acknowledged

Other conditions

Use must not unjustifiably prejudice the normal exploitation of the work and unjustifiably prejudice the legitimate interests of the author

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 19 and 16 of the Law on Copyright and Neighbouring Rights as entered into force on 10 June 1996

Republic of Korea

Scope regarding end beneficiary

Blind people

Works that may be used

Works that have been made public

Profit/non-profit making activity

No limitation for Braille; for sound recordings, a limitation to non-profit making activity probably exists by the scope of where recordings can be used

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restriction for Braille copies; for sound recordings, no restriction on reproduction but there is a restriction on where use can take place – must be at facilities established for the promotion of the welfare of the blind as prescribed by Presidential Decree.

Special formats or any accessible formats

Braille copies or sound recordings

Compulsory licence or exception

Exception

Acknowledgement required

Indication of source, including the author’s name, required

Other conditions

For sound recordings, the exception only permits their use at facilities established for the promotion of the welfare of the blind as prescribed by the Presidential Decree and these currently appear to be limited to facilities established by various non-profit making persons/bodies and special schools for visually handicapped people

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 30 and 34 of Copyright Act No. 3916 of 30 December 1989 as last amended by Act No. 5015 of 6 December 1995

Kyrgyzstan

Scope regarding end beneficiary

Impliedly limited to those requiring Braille and other special formats for blind people

Works that may be used

Lawfully published works, except those created in Braille or other special formats

Profit/non-profit making activity

No limitation found

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Braille copies or those produced by other special means for blind people

Compulsory licence or exception

Exception – stipulates no payment of remuneration to author

Acknowledgement required

Indication of author’s name, work used and source required

Other conditions

Use must not unjustifiably prejudice the normal exploitation of the work or without valid reason violate the legitimate interests of the author

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 19 and 16 of the Law on Copyright and Related Rights of as amended on 6 November 1999

Latvia

Scope regarding end beneficiary

Visually and hearing impaired people

Works that may be used

A work

Profit/non-profit making activity

Must be activity for non-commercial purposes

Permitted/restricted acts covered

Reproduction and distribution

Restrictions on who may undertake activity

Organisations for the visually and hearing impaired and libraries providing services to such people are specifically permitted to undertake this activity and others are not barred other than by limitations imposed by conditions

Special formats or any accessible formats

Any format that permits a visually or hearing impaired person to use it and insofar as it is necessary in the case of the relevant impairment

Compulsory licence or exception

Exception – stipulates no remuneration

Acknowledgement required

No requirement found

Other conditions

Use must not conflict with the normal exploitation of the work or unjustifiably limit the lawful interests of the author

Overridable by contract

No provision found

Interplay with DRMs

Organisations specifically permitted to undertake activity are able to request author to give access to DRM protected work, but the author may refuse to do so if use would be contrary to the normal exploitation of the work or unjustifiably limit the lawful interests of the author; failure to reach agreement can be referred to a mediator

Reference: Articles 19, 20 and 18 of Copyright Law as amended on 22 April 2004

Lithuania

Scope regarding end beneficiary

Impliedly limited to those requiring special formats for visually (and hearing) impaired people

Works that may be used

Lawfully published works other than those created in special formats for visually (and hearing) impaired people

Profit/non-profit making activity

Activity for non-commercial purposes

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Reproduce … in the form intended for people having hearing or visual impairment, to the extent required by the specific disability

Compulsory licence or exception

Exception – stipulates no payment of remuneration

Acknowledgement required

Source and name of the author required

Other conditions

Activity must not conflict with the normal exploitation of a work or prejudice the legitimate interests of the author or other owner of copyright. Also, activity must be for educational, teaching and scientific research purposes.

Overridable by contract

No provision found

Interplay with DRMs

Users of the exception must be provided with adequate means to be able to enjoy the exception, other than where works have been made available on demand. Right holders are required to supply information to an institution as authorized by the Government about any voluntary measures permitting enjoyment of exceptions. Users may refer any disputes to the Council for mediation and where parties do not accept a mediator’s proposal, the dispute can be settled by the court

Reference: Articles 22, 19 and 75 of Law on Copyright and Related Rights of 5 March 2003

Macau

For each aspect studied, the analysis of the provisions for Macau has been split into two as follows:

1. Making copies in Braille or another system for blind people

2. Fixation of lectures by blind people

Scope regarding end beneficiary

1. Impliedly limited to those who require Braille or another system for blind people

2. Blind people

Works that may be used

1. Published works

2. Lectures by professors

Profit/non-profit making activity

1. Non-profit making use only

2. No limitation found

Permitted/restricted acts covered

1. Reproduction and other uses, and including any transformation necessary

2. Fixation

Restrictions on who may undertake activity

1. No restriction found

2. Blind people for their exclusive use

Special formats or any accessible formats

1. Copies in Braille or another system for blind people

2. Fixation by any means

Compulsory licence or exception

1. and 2. Exception

Acknowledgement required

1. and 2. No requirement found

Other conditions

1. and 2. No other conditions found

Overridable by contract

1. and 2. No provision found

Interplay with DRMs

1. and 2. No provision found

Reference: Articles 65 and 66 of Decree-Law No. 43/99/M of 16 August 1999

Malaysia

For each aspect studied, the analysis of the provisions for Malaysia has been split into two as follows:

1. Activity by the Braille MAB Library

2. Subtitling and other modifications of television broadcasts

Scope regarding end beneficiary

1. Impliedly limited to those who require Braille copies

2. People who are deaf, hard of hearing or physically or mentally handicapped in other ways

Works that may be used

1. A work

2. Television broadcasts

Profit/non-profit making activity

1. Only non-profit making use and no admission fee can be charged for the showing, performing or playing of the work used

2. Only activity by non-profit making bodies permitted

Permitted/restricted acts covered

1. Any use that is in the public interest

2. Making of copies and issuing copies to the public

Restrictions on who may undertake activity

1. Use by the Braille MAB Library (Braille Publishing and Library Unit)

2. Bodies and institutions which the Minister may by Order prescribe

Special formats or any accessible formats

1. Likely to be Braille copies

2. Copies with subtitles or other modifications for the end beneficiaries

Compulsory licence or exception

1. and 2. Exception

Acknowledgement required

1. and 2. No requirement found

Other conditions

1. The use must be in the public interest, compatible with fair practice and the provisions of any regulations

2. No other conditions found

Overridable by contract

1. and 2. No provision found

Interplay with DRMs

1. and 2. No provision found

Other comments

1. A fairly general exception permitting use of works in the public interest applies to, amongst other things, public libraries and educational, scientific or professional institutions as the Minister may by order prescribe, and the Braille MAB Library has been prescribed so it has been assumed that it is undertaking activities for the benefit of visually impaired people and would be able to make Braille copies under this general exception.

Reference: Section 13 of the Copyright Act 1987 as amended on 15 August 2000

Republic of Moldova

Scope regarding end beneficiary

Blind people

Works that may be used

Published works except those created in Braille

Profit/non-profit making activity

No limitation found

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Braille only

Compulsory licence or exception

Exception – stipulates no remuneration

Acknowledgement required

Author’s name and source must be mentioned

Other conditions

The use must not prejudice normal exploitation of the work nor the rights and legitimate interests of the authors

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Article 22 of the Law of the Republic of Moldova on Copyright and Neighbouring Rights as amended on 28 July 2004

Mongolia

Scope regarding end beneficiary

Blind people

Works that may be used

Part of a work which has been made available to the public

Profit/non-profit making activity

No restrictions found

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Any format to be used by blind people

Compulsory licence or exception

Exception – stipulates no remuneration

Acknowledgement required

The source and author’s name must be mentioned

Other conditions

No other conditions found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Article 16 of Law of Mongolia on Copyright as amended on 21 May 1999

Netherlands

Scope regarding end beneficiary

Handicapped individuals

Works that may be used

Literary, scientific or artistic works

Profit/non-profit making activity

Non-commercial activity only

Permitted/restricted acts covered

Reproduction and publication

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Formats directly related to the handicap and necessary because of the handicap

Compulsory licence or exception

Fair payment to the author or right holder required

Acknowledgement required

No requirement found

Other conditions

No other conditions found

Overridable by contract

No provision found

Interplay with DRMs

Government orders may establish rules obliging right holders to provide the means to benefit from the exception, provided the user has lawful access to the work and it has not been supplied on demand on agreed contractual terms

Other comments

In addition to the above provision, lending of works put into circulation by or with the consent of rights holders is exempt from payment of remuneration where the lending is by libraries funded by the Libraries for the Blind and Visually Impaired Fund and to blind and visually impaired people registered with the libraries.

Reference: Articles 15i, 15c and 29a of the Copyright Act 1912 as amended on 20 January 2006

New Zealand

For each aspect studied, the analysis of the provisions for New Zealand has been split into two as follows:

1. Making of Braille and other accessible copies

2. Subtitling and other modifications of television broadcasts

Scope regarding end beneficiary

1. A person with a print disability, which is defined as a person who is (a) blind, or (b) suffers a severe impairment of his or her sight, or (c) is unable to hold or manipulate books, or (d) is unable to focus or move his or her eyes, or (e) suffers a handicap with respect to visual perception

2. People who are deaf or hard of hearing, or physically or mentally handicapped in any other way

Works that may be used

1. Literary or dramatic works so long as, after making reasonable efforts, it has not been possible to obtain the work in the modified form needed within a reasonable time and at an ordinary commercial price

2. Television broadcasts or cable programmes

Profit/non-profit making activity

1. and 2. Any body prescribed to undertake the activity must not be established or conducted for profit. Any person required to pay for the accessible copy must not be charged more than the cost of production and a reasonable contribution to the general expenses of the prescribed body.

Permitted/restricted acts covered

1. Make copies or adaptations and provide copies to the end beneficiaries

2. Make and issue copies to the public

Restrictions on who may undertake activity

1. and 2. A body prescribed by regulations

Special formats or any accessible formats

1. Braille copies or copies with other modifications for the special needs of people with a print disability

2. Copies that are subtitled or otherwise modified for the special needs of the end beneficiaries

Compulsory licence or exception

1. and 2. Exception

Acknowledgement required

1. and 2. No requirement found

Other conditions

1. The copyright owner must be notified of the making of the copy or adaptation. Where any copy made is subsequently dealt with (other than providing to the person with a print disability), the copy becomes an infringing copy

2. No other conditions found

Overridable by contract

1. and 2. No provision found

Interplay with DRMs

1. and 2. No provision found

Reference: Sections 69 and 89 of the Copyright Act 1994 consolidated up to Amendment 2005 No. 33

Nicaragua

Scope regarding end beneficiary

Visually impaired people

Works that may be used

A work

Profit/non-profit making activity

Non-profit making activity only permitted

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Copies made using the Braille system or another specific procedure

Compulsory licence or exception

Exception

Acknowledgement required

No requirement found

Other conditions

No other conditions found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Article 34 of the Law on Copyright and Related Rights as entered into force on 31 August 1999

Nigeria

Scope regarding end beneficiary

Blind people regarding Braille copies; disabled people for sound recordings

Works that may be used

Published works

Profit/non-profit making activity

No limitation found, although Government approved establishments might be limited to non-profit making ones

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

For sound recordings, activity must be by institutions or other establishments approved by the Government for the promotion of the welfare of other disabled persons

Special formats or any accessible formats

Braille copies or sound recordings

Compulsory licence or exception

Exception

Acknowledgement required

No requirement found

Other conditions

No other conditions found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Second Schedule of the Copyright Act (Consolidation Ch. 68) 1988 (1999) No. 47 (No. 42)

Norway

For each aspect studied, the analysis of the provisions for Norway has been split into three as follows:

1. Making accessible formats of literary, scientific or musical works for blind and other disabled people

2. Making a fixation, on a device that can reproduce the fixation, of literary and scientific works for disabled people

3. Making a fixation of a film, picture or broadcast for disabled people

Scope regarding end beneficiary

1. Blind people, people whose sight is impaired and others who due to a disability cannot perceive the work in the normal way

2. Disabled people

3. Disabled people

Works that may be used

1. Published literary, scientific or musical works other than where others have made accessible formats especially for the end beneficiaries

2. Published literary or scientific works (with any associated artistic works or photographs)

3. A published film or picture or transmitted broadcast programme (which essentially does not consist of a musical work)

Profit/non-profit making activity

1, 2. and 3. Only non-commercial activity permitted

Permitted/restricted acts covered

1. Reproduction

2. Making a fixation

3. Making a fixation

Restrictions on who may undertake activity

1. No restrictions specified

2. Organisations and libraries as specified by the King

3. No restrictions specified, but regulations made by the King could impose restrictions

Special formats or any accessible formats

1. A form other than a sound fixation

2. A fixation on a device that can reproduce the fixation

A fixation with or without sound

3. In all cases the copy must not prejudice the character of the work

Compulsory licence or exception

1. Exception

2. Remuneration paid to the author by the State

3. Person making the fixation must fulfill the conditions for an extended collective licence

Acknowledgement required

In all cases source acknowledgement is required

Other conditions

1. No other conditions found

2. The King may stipulate terms

3. Provision applies only as set out in regulations issued by the King

Overridable by contract

No provision found

Interplay with DRMs

Right holders must ensure that the exceptions 1. and 2. above can be enjoyed and, as a result of a petition to the Board established by the Ministry, right holders can be ordered to permit enjoyment of the exceptions, or, if this is still not possible, circumvention of DRMs to enjoy the exception can be ordered. The provision does not apply to works made available on demand on agreed contractual terms, or to computer programs. The King may decide that some libraries, archives and museums should receive information to enable circumvention for legal copying.

Other comments

The general exception permitting private copying (section 12) specifically permits disabled people to use outside assistance by those not acting for gain in order to copy musical works or films, where this is necessary because of the disablement

Reference: Sections 17, 17a, 17b, 11, 53b and 12 of Act No. 2 of 12 May 1961 relating to Copyright in Literary, Scientific and Artistic Works, Etc, as amended up until 17 June 2005

Panama

Scope regarding end beneficiary

Blind and other handicapped people

Works that may be used

Works

Profit/non-profit making activity

End beneficiaries must be able to attend communication free of charge and none of the participants in the activity must receive specific remuneration

Permitted/restricted acts covered

Communication to the public

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Reproduction not permitted so no accessible formats can be made

Compulsory licence or exception

Exception – stipulates no payment of remuneration

Acknowledgement required

No requirement found

Other conditions

No other conditions found

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Article 47 of Law No. 15 of 8 August 1994

Paraguay

Scope regarding end beneficiary

Visually handicapped people

Works that may be used

Works that have already been disclosed

Profit/non-profit making activity

Reproduction must not be with gainful intent and copies must not be used for profit-making purposes

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Braille or another specific form for the exclusive use of visually handicapped people

Compulsory licence or exception

Exception – stipulates no payment of remuneration

Acknowledgement required

No requirement found

Other conditions

Activity must also not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the author. Also, the exception must have a restrictive interpretation and must not be applicable to cases that are contrary to honest use.

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 39 and 45 of Law No. 1328/98 on Copyright and Related Rights

Peru

Scope regarding end beneficiary

Blind people

Works that may be used

Works which have been lawfully disclosed

Profit/non-profit making activity

Limited to non-profit making activity

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Copies made by the Braille system or another specific procedure

Compulsory licence or exception

Exception

Acknowledgement required

No requirement found

Other conditions

Must be for the private use of blind people. The exception must have a restrictive interpretation and must not be applicable to cases that are contrary to honest use.

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 43 and 50 of Copyright Act - Legislative Decree No. 822 of 23 April 1996

Poland

Scope regarding end beneficiary

Disabled people

Works that may be used

Works that have been disseminated

Profit/non-profit making activity

There must be no profit-making nature

Permitted/restricted acts covered

Use generally so long as required by disability

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

No restrictions specified other than anything done must be required by and arise out of the nature of the disability

Compulsory licence or exception

Exception

Acknowledgement required

The full name of the author and source must be identified

Other conditions

The use must not conflict with the normal exploitation of the work or violate the rightful interests of the author

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 331, 34 and 35 of Act of 4 February 1994 on Copyright and Related Rights, as amended up to 5 February 2005

Portugal

Scope regarding end beneficiary

Blind people; people with a disability

Works that may be used

Lawfully published works

Profit/non-profit making activity

Reproduction and use or activity must be for non-profit making purposes

Permitted/restricted acts covered

Reproduction or other forms of use; communication and distribution to the public

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Braille or another system for blind people; formats directly related to the disability and to the extent necessary because of the disability

Compulsory licence or exception

Exception, although there may be a possibility of equitable remuneration in some cases

Acknowledgement required

Name of the author, publisher and the work must be indicated at least for activity under the exception permitting more general types of format

Other conditions

Use must not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the right holders (although this condition does not clearly apply to production of Braille and other special formats).

Overridable by contract

Contractual conditions that attempt to override at least the more general provision not specifying types of formats are null and void, although there is the possibility of remuneration in a contract

Interplay with DRMs

Right holders must adopt voluntary measures so that the beneficiaries of at least the more general exception can continue to enjoy the permitted activity. A person lawfully able to access a work who is prevented by DRMs from enjoying the exception can apply to the General Inspector of Cultural Activities, or failing that the Commission of Mediation and Arbitration. The provision does not apply to works made available on demand on agreed contractual terms.

Other comments

The exception in Article 80 relating to Braille and other special format production appears to have been recently supplemented by new, wider, and overlapping provision in Article 75(2)(i).

Reference: Articles 80, 75, 76, 221 and 222 of the Copyright and Related Rights Code, as amended on 24 August 2004

Russian Federation

Scope regarding end beneficiary

Impliedly limited to those needing to access copies in Braille or other special formats for blind people

Works that may be used

Legitimately published works, other than works specially created in Braille or other special formats for blind people

Profit/non-profit making activity

Only non-profit making activity permitted

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Use of the Braille system or other special means for the blind

Compulsory licence or exception

Exception – stipulates no payment of royalty

Acknowledgement required

Indication of author’s name and source required

Other conditions

Activity under the exception must not cause unjustified harm to the normal use of the work and must not unreasonably prejudice the lawful interests of the author

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 19 and 16 of the Law of the Russian Federation No. 5351of 9 July 1993 on Copyright and Neighbouring Rights, as amended on 20 July 2004

Singapore

Scope regarding end beneficiary

Handicapped readers, which means (a) a blind person; (b) a person suffering severe impairment of his sight; (c) a person unable to hold or manipulate books or to focus or move his eyes; or (d) a person suffering from a perceptual handicap

Works that may be used

Literary or dramatic works that have been published, but where the format to be made has already been published, it can only be made under the exception if satisfied after reasonable investigation that it is not possible to obtain a published copy in a reasonable time and at an ordinary commercial price

Profit/non-profit making activity

An institution other than an educational institution acting under this exception must not be conducted for profit, direct or indirect, of an individual or individuals

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

Applies to making copies, by or on behalf of the body administering an institution assisting handicapped readers, which includes educational institutions

Special formats or any accessible formats

Sound recording, Braille version, large print or photographic version (which is a copy as a film-strip or series of separate transparencies designed to meet the needs of handicapped readers)

Compulsory licence or exception

Exception except where a copyright owner requests payment for the making of a handicapped reader’s copy of a work when equitable remuneration becomes payable, as determined by the Copyright Tribunal in the absence of agreement

Acknowledgement required

No requirement found

Other conditions

Handicapped reader must use copy for research or study or for instructing himself on any matter. Only applies to copying of a handicapped reader’s copy of an article in a periodical or another work if a record of the copying, complying with regulations, is made as soon as practicable.

Overridable by contract

No provision found

Interplay with DRMs

Circumvention of DRMs by an institution assisting handicapped readers is possible in order to have access to the work to determine whether to acquire a copy of the work, but only if the act does not lead to an infringement of the copyright in the work or otherwise violate a provision of any other written law. The Minister may by Order exclude the operation of the anti-circumvention provisions if enjoyment of the exception has been adversely impaired or affected.

Other comments

It is specifically stated that nothing in the exception shall affect the right of the owner of copyright in a work to grant a licence authorizing the copying by the body administering an institution assisting handicapped readers

Reference: Sections 54 and 261D of the Copyright Act (Chapter 63)

Slovakia

Scope regarding end beneficiary

Handicapped people

Works that may be used

Works that have been disclosed

Profit/non-profit making activity

Activity must not gain any direct or indirect economic advantage

Permitted/restricted acts covered

Reproduction, distribution other than by sale but including lending, communication to the public

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Use exclusively to cater for the needs of handicapped people to the extent justified by their handicap

Compulsory licence or exception

Exception – stipulates no obligation to pay remuneration to the author

Acknowledgement required

The author’s name, the publisher, title and source must be acknowledged

Other conditions

Disposal of a copy of the work made under the exception may not conflict with a normal exploitation of the work and may not unreasonably prejudice the legitimate interests of the author

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Sections 29, 25 and 38 of the Copyright Act, as entered into force on 1 January 2004

Slovenia

Scope regarding end beneficiary

People with a disability

Works that may be used

Works that are not available in the desired form

Profit/non-profit making activity

Activity must not be for direct or indirect economic advantage

Permitted/restricted acts covered

Reproduction and distribution

Restrictions on who may undertake activity

No restrictions found

Special formats or any accessible formats

Use is directly related to the disability and limited to its extent

Compulsory licence or exception

Equitable remuneration must be paid

Acknowledgement required

No requirement found

Other conditions

The extent of exploitation of copyright works under the exception must be limited by the intended purpose and compatible with fair practice, and must not conflict with normal use of the work, or unreasonably prejudice the legitimate interests of the author

Overridable by contract

No provision found

Interplay with DRMs

Right holders must make available to a person in lawful possession of a work the means to enjoy the exception that is prevented by DRMs. If a right holder fails to do this, the dispute can be referred to mediation. The provision does not apply to works made available on demand on agreed contractual terms.

Reference: Articles 47a, 46 and 166c of the Copyright and Related Rights Act, as amended on 11 May 2004

Spain129

Scope regarding end beneficiary

Blind people

Works that may be used

Works that have been disclosed

Profit/non-profit making activity

Copies must not be put to profit-making use

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Reproduction by the Braille system or another specific method

Compulsory licence or exception

Exception

Acknowledgement required

No requirement found

Other conditions

Must be for the private use of blind people

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Article 31 of Royal Legislative Decree 1/1996, as amended on 7 January 2000

Sweden

Scope regarding end beneficiary

People with a disability

Works that may be used

Literary and musical works and works of visual art, in all cases so long as the work has been made public

Profit/non-profit making activity

Activity under the exception must not be for commercial purposes

Permitted/restricted acts covered

Reproduction, distribution and subject to certain conditions, communication to the public

Restrictions on who may undertake activity

No restriction except for communication of any work to those with a disability, and making, distribution and communication of a sound recording, when the activity can only be undertaken by libraries and organizations as decided by the Government

Special formats or any accessible formats

Copies that people with a disability need in order to be able to enjoy the work, although there are limitations on who can make sound recordings

Compulsory licence or exception

Exception except for distribution and communication by libraries and organizations where the person with a disability may keep a copy, and the distribution of more than a few copies by anyone of any other accessible format - for both of these the author has a right to remuneration

Acknowledgement required

The name of the author and source must be stated

Other conditions

A work may not be changed, or made available to the public, in a manner that is prejudicial to the author’s literary or artistic reputation, or altered more than is necessary for the use. Specifically requires that copies must not be used for purposes other than those set out in the exception.

Overridable by contract

No provision found

Interplay with DRMs

For a work a person is entitled to use, at the request of the user, the Court may order the right holder to make it possible for the user to enjoy the exception, and failure to comply incurs a fine. The provision does not apply to works made available on demand on agreed contractual terms.

Reference: Articles 17, 11, 3 and 52f of Act on Copyright in Literary and Artistic Works, as amended up to 1 July 2005

Ukraine

Scope regarding end beneficiary

Blind people

Works that may be used

Disclosed works

Profit/non-profit making activity

No limitation found

Permitted/restricted acts covered

Issue works, and also implies reproduction

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Braille only

Compulsory licence or exception

Exception

Acknowledgement required

The author’s name and source must be indicated

Other conditions

Activity must not prejudice the use of a work or unjustifiably limit the author's legitimate interests

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Articles 21 and 15 of the Law on Copyright and Related Rights of 2001

Uzbekistan

Scope regarding end beneficiary

Blind people

Works that may be used

Published works other than those specially created for blind people

Profit/non-profit making activity

Activity must not lead to a profit

Permitted/restricted acts covered

Reproduction

Restrictions on who may undertake activity

No restriction found

Special formats or any accessible formats

Relief-dot font or other means for blind people

Compulsory licence or exception

Exception – specifies free use

Acknowledgement required

The author’s name and source must be indicated

Other conditions

Activity must not harm the normal use of the work nor hurt the legal interests of the author

Overridable by contract

No provision found

Interplay with DRMs

No provision found

Reference: Article 28 of the Law of the Republic of Uzbekistan of 30 August 30 1996 N 272-I on Copyright and Neighbouring Rights as amended to 15 December 2000

United Kingdom

For each aspect studied, the analysis of the provisions for the United Kingdom has been split into three as follows:

1. Making of accessible copies of works that visually impaired people have in their possession or have lawful access to

2. Making of accessible copies by approved bodies for supply to visually impaired people

3. Making of subtitled or otherwise modified copies of broadcasts for supply to people with a disability

Scope regarding end beneficiary

1. Visually impaired people which means a person (a) who is blind, (b) who has an impairment of visual function which cannot be improved by the use of corrective lenses to a level that would normally be acceptable for reading without a special level or kind of light, (c) who is unable through physical disability to hold or manipulate a book, or (d) who is unable through physical disability to focus or move his eyes to the extent that would normally be acceptable for reading.

2. As for 1.

3. People who are deaf or hard of hearing, or physically or mentally handicapped in other ways

Works that may be used

1. Literary, dramatic, musical or artistic works (other than databases) or published editions, which a visually impaired person has in their lawful possession and which are not accessible to him because of the impairment and where no copies in a form accessible to him are commercially available.

2. Commercially published literary, dramatic, musical or artistic works (other than databases) or published editions, where the body making copies has lawful possession of a copy and where there are no commercially available versions in a form that is accessible to the same degree as those accessible copies to be made.

3. Television broadcasts, including those delivered by cable

Profit/non-profit making activity

1. Any charge by a person making and supplying an accessible copy to a visually impaired person must not exceed the cost of doing this.

2. Approved body other than an educational establishment must be non-profit making. Any charge for supplying an accessible copy must not exceed the cost of making and supplying the copy.

3. Only activity by designated bodies which must not be established or conducted for profit

Permitted/restricted acts covered

1. Reproduction

2. Reproduction and supply to a visually impaired person where there is no commercially available version accessible to that person; supply includes lending

3. Reproduction and issue or lend copies to the public

Restrictions on who may undertake activity

1. The visually impaired person only where he has lawful possession or use of an inaccessible copy, or someone making an accessible copy on his behalf.

2. An approved body, which is an educational establishment or a body not conducted for profit, where that body has lawful possession of an inaccessible copy

3. A designated body

Special formats or any accessible formats

1. Any accessible copy, which means a copy that gives improved access to a work for a visually impaired person and can include facilities for navigating, but not changes not necessary to overcome the visual impairment. Also, recording a performance of a musical work is specifically ruled out.

2. As for 1.

3. Copies that are subtitled or otherwise modified for the special needs of the end beneficiaries

Compulsory licence or exception

1. Exception

2. Exception, but subject to licensing where copyright owners operate a licensing scheme notified to the Secretary of State.

3. Exception, but subject to licensing where a licensing scheme has been certified

Acknowledgement required

1. Sufficient acknowledgement and a statement that a copy is made under the exception are required.

2. As for 1.

3. No requirement found

Other conditions

1. Accessible copies made may be transferred to other visually impaired people entitled to act under the exception, or to intermediaries who will transfer the copies to entitled visually impaired people, so long as they also have lawful possession of an inaccessible copy of the work. Where a person has an accessible copy without entitlement, or it is subsequently dealt with, the copy becomes an infringing copy. Changes which would infringe the right not to have a work subjected to derogatory treatment are not possible.

2. Copies made by educational establishments must only be used for their educational purposes. If the inaccessible copy is copy-protected, then the accessible copy must be too to the extent this is practicable. A copy becomes an infringing copy when held by a no longer entitled body or when it is subsequently dealt with. Where activity has led to infringement of copyright, the Secretary of State may by order prohibit certain approved bodies by name or type from acting, or the making of accessible copies of a certain type. Changes which would infringe the right not to have a work subjected to derogatory treatment are not possible.

3. No other conditions found

Overridable by contract

1. 2. and 3. General provision makes it clear that exceptions do not affect any other right or obligation restricting the doing of any of the specified acts

Interplay with DRMs

1. 2. and 3. A person who has lawful access to a work and is unable to enjoy the exceptions because of DRMs, other than in respect of a computer program, can make a complaint to the Secretary of State who can order the copyright owner to make available a means of carrying out the permitted acts. Failure to comply with the order is a breach of statutory duty which is actionable before the courts. The provision does not apply to works made available on demand on agreed contractual terms.

Other comments

1. None

2. Subject to various conditions, approved bodies may hold, and lend or transfer to other approved bodies, intermediate copies necessarily created during the production of accessible copies.

3. None

Reference: Sections 31A to 31F, 74, 28 and 296ZE of the Copyright, Designs and Patents Act 1988 as amended up to 31 December 2003

United States of America

For each aspect studied, the analysis of the provisions for the United States of America has been split into three as follows:

1. Making of specialized formats by authorized entities

2. Publishers’ obligations to provide electronic files of the content of print instructional material

3. Transmission of performances of literary works to blind and other handicapped people

Scope regarding end beneficiary

1. Blind people or other persons with disabilities, which is defined as people who are eligible, or may qualify, to receive books or other publications in specialized formats under earlier legislation130 on the provision of books for blind adults.

2. Blind people or other persons with disabilities in elementary or secondary schools

3. Blind and other handicapped persons

Works that may be used

1. Previously published, non-dramatic literary work, but not standardized, secure or norm-referenced tests and related testing material, or computer programs, other than the portions in conventional human language that are displayed to users when the program is in use

2. Print instructional materials for use in elementary or secondary schools

3. Literary works which must have been published at least ten years from the date of the performance in the case of dramatic literary works

Profit/non-profit making activity

1. Activity must be by a non-profit organization or governmental agency

2. Publishers activity in general not limited in this respect by this provision, but publishers acting under this exception are complying with a requirement of a State or local education agency in respect of the content used

3. No direct or indirect commercial advantage permitted from the performance and also limitations from type of body permitted to make a transmission

Permitted/restricted acts covered

1. Reproduction and distribution

2. Create and distribute copies to the National Instructional Materials Access Centre

3. Performance and transmission

Restrictions on who may undertake activity

1. Activity must be by an authorized entity, which is a non-profit organisation or governmental agency that has a primary mission to provide specialized services relating to training, education or adaptive reading or information access needs of blind or other persons with disabilities

2. Activity by publisher of print instructional materials

3. The transmission must be made through the facilities of a governmental body, a non-commercial educational broadcast station, a radio subcarrier authorisation or a cable system

Special formats or any accessible formats

1. Specialised formats, that is Braille, audio or digital texts, exclusively for use by blind people or people with other disabilities

2. Copies of electronic files as described in legislation relating to individuals with disabilities and education and that contain the contents of print instructional material131, so long as the content is required by any State or local educational agency. The copies must then be used solely for reproduction and distribution of the contents in specialized formats, which has the same scope as for 1. With the additional possibility of large print formats exclusively for use by blind people or people with other disabilities

3. Copies are not made – exception permits a transmission specifically designed for and primarily directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap

Compulsory licence or exception

1. Exception

2. Exception

3. Exception

Acknowledgement required

1. Must include a notice of the copyright owner and the date of the original publication

2. As for 1.

3. No requirement found

Other conditions

1. Copies in specialized formats must bear a notice that any further reproduction or distribution other than in a specialized format is an infringement.

2. As for 1. Also, the publisher must have the right to publish the print instructional materials in print format

3. For a dramatic literary work, the exception only permits a performance on a single occasion, and is specifically disapplied from more than one performance of the same work by the same performers or under the auspices of the same organisation

Overridable by contract

All. No provision found

Interplay with DRMs

All. Those people entitled to enjoy the exceptions who are, or are likely to be, adversely affected by the prohibition of circumvention of DRMs in a 3 year period succeeding the time the matter is considered and ruled upon by the Librarian of Congress may be able to benefit from those rulings. Every 3 years, the Librarian makes a determination in a rulemaking proceeding which can disapply the anti-circumvention provisions for 3 years from specified classes of copyright works. The Librarian of Congress can only take such action after consultation as stipulated in the law, and after examining various specified matters.

In addition, it is specifically provided that nothing in the section providing protection against circumvention of copyright protection systems affects rights, remedies, limitations, or defenses to copyright infringement, including fair use, under US copyright law.

Finally, subject to a number of conditions and safeguards to minimize misuse of the provision, a nonprofit library, archive or educational institution may gain access to a commercially exploited protected work for the sole purposes of deciding whether to acquire a copy of the work without violating the anti-circumvention provisions.

Other comments

The provision relating to transmission of performances of literary works also applies to deaf or other handicapped persons who are unable to hear the aural signals accompanying a transmission of visual signals

Reference: Sections 121, 110 and 1201 of United States Code – Title 17, as amended to 3 December 2004

ANNEX 3

DISTRIBUTION AND IMPORTATION RIGHTS IN NATIONAL LAWS

Notes:

1. In all cases the study has considered to what extent the activities indicated might be permitted for non-commercial purposes only as any activity for commercial purposes seems most unlikely to be compatible with international conventions and treaties.

2. In the table below, the items identified mean the following:

Armenia

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies seems to cover lending as well as commercial rental so not even clear whether lending permitted

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

Probably not permitted as the right holder has a specific right to prohibit the export (and import) of copies produced without his permission132 and the exception does not specifically cover export

Export to national organizations

Unlikely to be permitted for same reason as for export to individuals

Export to international organisations

Same as for export to national organisations

Import by individuals

Given specific right to prohibit imports as well as exports of copies made without permission, as indicated above, does not appear to be legal.

Import by organisations

Same as for import to individuals

Export/import of intermediate copies

Nothing clearly permitted and right to prohibit import/export as indicated above makes it very doubtful that this is legal

Exhaustion of rights

Right of distribution in tangible copies seems to be exhausted after first time it is exercised by the right holder and this seems to therefore permit importation of copies made with the right holder’s consent in other countries

Reference: Law on Copyright and Neighbouring Rights adopted by the National Assembly on 8 December 1999

Australia

Distribution to individuals

Distribution of accessible copies by any means seems possible other than commercial rental of sound recordings. “Lending” does not appear to be a restricted act so would be possible even with sound recordings, but may be limited to loans involving no payment other than a returnable deposit.

Distribution to organisations

Distribution to visually impaired people via other organisations assisting them does not appear to be ruled out.

Export to individuals

No particular restriction found. Probably permitted

Export to national organizations

Probably not permitted as exception is very clearly limited solely to assistance to persons with a print disability and difficult to be sure of satisfying this where such a person is not the recipient

Export to international organisations

Same as for export to national organisations

Import by individuals

No provision found that appears to make it illegal for individuals to import accessible copies legally made in other countries so probably permitted

Import by organisations

Provision on importation/exhaustion of rights is complicated, but it may be possible for organizations to import accessible copies that they would have been permitted to make in Australia133

Export/import of intermediate copies

Provision on intermediate copies134 limited to activity that is solely for purposes of exercising Australian exception applying to making and communicating accessible copies to visually impaired people so export of intermediate copies unlikely to be legal as would not be to an organization that can enjoy the Australian exception. Import may be possible so long as to organization permitted to make such a copy in Australia

Exhaustion of rights

Provision varies depending on the type of article, but importation of articles made with the permission of the right holder in another country is often permitted, although in the case of books, only if the book is not published in Australia within 30 days of the first publication overseas135.

Reference: Copyright Act 1968 as amended up to Act No. 9 of 2006

Austria

Distribution to individuals

Distribution of tangible copies by any means seems to be permitted, but probably not by communication to the public by electronic transmission

Distribution to organisations

Probably possible to distribute to other authorized organizations and then by same means as for distribution to individuals to end beneficiaries

Export to individuals

Probably permitted

Export to national organizations

Less likely to be permitted

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

Less likely to be permitted

Export/import of intermediate copies

No provision found. Probably not permitted

Exhaustion of rights

Distribution right in a tangible copy is exhausted after the first sale or other transfer within the EEA by or with the consent of the copyright owner, but the rental right is not exhausted and the lending right gives continuing entitlement to remuneration136

Reference: Federal Law on Copyright and Related Rights as amended in 2003

Azerbaijan

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies does not seem to cover lending (but does cover commercial rental) so lending seems possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, although doubt exists because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Could be permitted as no provision preventing personal imports found

Import by organisations

Given specific right to prohibit imports of copies for the purposes of distribution when made with or without permission of the right holder, importation of accessible copies by organisations does not appear to be legal137

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Subsequent distribution, other than rental, of tangible copies which have been published and lawfully put into circulation by sale is permitted, but this does not seem to apply to copies made overseas as there is a specific right to authorise importation for the purposes of distribution, including copies made with the authorisation of the right holder138

Reference: Law on Copyright and Related Rights as entered into force on 8 October 1996

Belarus

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies does not seem to cover lending (but does cover commercial rental) so lending seems possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, although doubt arises because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

A right to control imports seems to be very broad139 and copies imported without the consent of the right holder are counterfeit140 so even imports of accessible copies by individuals seems unlikely to be permitted

Import by organisations

Even more unlikely to be legal than import by individuals

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

If tangible copies have been put into circulation in Belarus by sale or other transfer of ownership with the consent of the author, then further distribution is not restricted other than by commercial rental, but provision of broad importation right does not seem to give rise to exhaustion of rights until consent for first distribution in Belarus has been given141.

Reference: Law on Copyright and Related Rights No. 194-3 of 11 August 1998, as amended up to the Law of the Republic of Belarus No. 183-Z of 4 January 2003

Belize

Distribution to individuals

Distribution to end beneficiaries by issuing of tangible copies142 to the public, which includes rental, seems possible but lending also seems possible as lending right not found.

Distribution to organisations

May not be impossible for distribution to be through another organisation, but would have to be another body designated to act under the exception

Export to individuals

No particular restriction found so could be possible

Export to national organizations

Unlikely to be possible because exception only permits activity involving designated bodies and bodies overseas would not be designated

Export to international organisations

Same as for export to national organisations

Import by individuals

An accessible copy made elsewhere is likely to be an “infringing copy” as it is unlikely to have been made by a body able to make it in Belize. However, it is not an infringement of copyright to import copies for private and domestic use so import of accessible copies by individuals is probably legal, even where the accessible copies are of a type not permitted to be made in Belize143

Import by organisations

There is no exception to the importation of infringing copies by organisations so likely to be illegal

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Definition of “infringing copies” means that exclusive licence agreements can be established to make it illegal to import copies made with the consent of the right holder overseas.

Reference: Copyright Act as amended on 31 December 2000

Brazil

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies may not cover lending so this may be possible144

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

Export to individuals may be possible

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

Could be possible although could be problems with subsequent distribution

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Not clear when rights are exhausted

Reference: Law No. 9610 of 19 February 1998 on Copyright and Neighboring Rights

Bulgaria

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies seems to cover lending as well as commercial rental so neither clearly possible.

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

Export to individuals may be possible

Export to national organizations

Export of a large number of copies unlikely to be possible as export (and import) of copies in “commercial quantities”, either legally or illegally made, is a restricted act145.

Export to international organisations

Same as for export to national organisations

Import by individuals

Import of accessible copies likely to be legal as would not be in “commercial quantities”

Import by organisations

Could be possible if not in large numbers

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Distribution right in tangible copies only exhausted with first sale or other transfer of ownership authorized by the right holder in Bulgaria, but right to authorise rental is not exhausted and exhaustion does not apply to copies made with the right holder’s consent by recipients of an electronic communication of the work146.

Reference: Copyright and Neighbouring Rights Act No. 56/29.06 1993 as amended on 1 January 2003

Cameroon

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies does not seem to cover lending (but does cover commercial rental) so lending seems possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, but could only be Braille copies as only those permitted to be made under exception in Cameroon. Doubt arises about legality because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Import of “forged objects” not permitted147, but accessible copies made overseas may not count as such so could be permitted

Import by organisations

Could also be permitted but again depends on meaning of “forged objects”

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Not clear when distribution rights are exhausted

Reference: Law No. 2000/011 of 19 December 2000 on Copyright and Neighbouring Rights

Canada

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies does not seem to cover lending (but does cover commercial rental of sound recordings and computer programs) so lending seems possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, but doubt arises about legality because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted as definition of how copyright is infringed by importation seems to require copies to be imported for sale, distribution or other dealing and so does not seem to apply to importation by an individual for his own use148.

Import by organisations

Importation of single copies may be permitted for same reasons as importation by individuals, but importation of multiple copies less likely to be permitted. Provision on infringement by importation also only applies to infringing copies or copies that would infringe copyright if made in Canada by the person who made it, but the latter could apply as organizations making accessible copies in other countries are not likely to be entitled to make copies in Canada as the Canadian exception does not apply to them.

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Definition of “infringing copy” and infringement by importation149 appear to provide for some situations where rights are not exhausted in Canada such as where a copy is made in another country by an exclusive licensee, who is not the same person authorized to exercise the rights in Canada, and the copies are imported for distribution and sale, i.e. not private imports. Also, there is specific provision relating to parallel imports of books ruling out imports of books legally made in other countries but not authorized for importation into Canada and which could not be legally made in Canada by the person importing them, although regulations can provide differently for situations such as remaindered books and special orders150

Reference: Copyright Act (R.S., 1985, c. C-42)

China

Distribution to individuals

Exception permits publication which probably includes distribution of tangible copies otherwise than by rental. Rental does not seem to be clearly limited to only commercial activity but no separate lending right so non-commercial lending may also be possible.

Distribution to organisations

Probably the same as for distribution direct to individuals, but exception only permits accessible copies in Braille

Export to individuals

No restriction found. Probably permitted

Export to national organizations

No restriction found. May be permitted but not clear

Export to international organisations

Same as for export to national organisations

Import by individuals

No restriction found. Probably permitted

Import by organisations

No restriction found. May be permitted but subsequent distribution of copies other than in Braille unlikely to be permitted as exception does not cover these

Export/import of intermediate copies

No provision found but could be legal given lack of restrictions specifically on import/export, but unlikely to permit any subsequent activity unless it is making and distributing Braille copies only

Exhaustion of rights

No provision found

Reference: Copyright Law of the People’s Republic of China as amended up until 27 October 2001

Croatia

Distribution to individuals

Distribution to visually impaired people by any means probably possible as exception permits “use” for the benefit of disabled people, but rental probably not possible as commercial activity outside scope of exception

Distribution to organisations

Distribution via other organisations probably permitted too – it is not clearly ruled out

Export to individuals

Probably permitted but the meaning of the “the right of the author to authorize or prohibit the export to or the import from a certain country of the original or copies of the work”151 is not clear and so not clear whether permitted

Export to national organizations

Less certain that export to organizations permitted as direct beneficiary for export by an organization in Croatia may need to be an individual visually impaired person

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted but the provision referred to above (see export to individuals) may be relevant

Import by organisations

Could be permitted as could come within the scope of “use” as specified in the exception, but provision referred to above (see export to individuals) may be relevant

Export/import of intermediate copies

Not clearly permitted but not clearly prevented either so could be possible

Exhaustion of rights

First sale or other transfer of ownership by or with consent of author or right holder in Croatia exhausts the distribution right in tangible copies in Croatia, but not the rental and lending rights or “the right of the author to authorize or prohibit the export to or the import from a certain country of the original or copies of the work”152

Reference: Copyright and Related Rights Act of 2003

Czech Republic

Distribution to individuals

Distribution permitted by the exception which means making copies available in tangible form by sale or other transfer of ownership, but not rental and lending

Distribution to organisations

Distribution via other organizations seems to be possible so long as end beneficiary is a visually impaired (or other disabled) person

Export to individuals

Probably permitted

Export to national organizations

Less certain that export to organizations permitted as direct beneficiary for export by an organization in Croatia may need to be an individual visually impaired person

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted, especially if accessible copy already distributed under an exception for the benefit of visually impaired people in another country of the EU or EEA as distribution right seems to be exhausted by any lawful distribution in these territories and not just distribution with the consent of the right holder153

Import by organisations

May be permitted in same circumstances as for import by individuals

Export/import of intermediate copies

Not clearly permitted but not clearly prevented either so could be possible

Exhaustion of rights

Right of distribution of tangible copies after first lawful sale or other transfer of ownership anywhere in the EU or EEA exhausts the right of distribution in tangible copies, but not the rental and lending rights

Reference: Law No. 121/2000 Coll. of 7 April 2000 on Copyright, Rights Related to Copyright and on the Amendment of Certain Laws as amended to 21 January 2005

Denmark

Distribution to individuals

Clearly permitted except distribution by rental

Distribution to organisations

Probably permitted as distribution direct to visually impaired person does not seem to be required so long as end beneficiary of the organization is a visually impaired (or other handicapped) person

Export to individuals

Probably permitted

Export to national organizations

Probably not permitted as more difficult to be sure that such organizations control use as required under the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted, especially if accessible copy made under an exception for the benefit of visually impaired people in another country that permits similar activity to that permitted in Denmark154

Import by organisations

Possibly permitted as exception seems to cover the case where an organization does not make but only distributes an accessible copy, but as for individual importation, more likely where copy made under an exception provision similar to that in Denmark

Export/import of intermediate copies

Export unlikely to be permitted, import may be possible

Exhaustion of rights

Distribution right in a tangible copy exhausted when that copy has been sold or otherwise transferred to others within the EEA with the consent of the author, but rental right not exhausted.155

Reference: Copyright Act consolidated in Act No. 164 of 12 March 2003

Dominican Republic

Distribution to individuals

Distribution of copies does not seem to be permitted by any means as exception does not even permit making of accessible copies

Distribution to organisations

Same as for distribution to individuals

Export to individuals

Unlikely to be permitted given exception does not appear to permit any distribution of copies

Export to national organizations

Same as for export to individuals

Export to international organisations

Same as for export to individuals

Import by individuals

Probably permitted

Import by organisations

Probably not permitted given exception does not appear to permit any distribution of copies and distribution right seems to be comprehensive regarding mechanisms for distribution, including rental, lending and communication to the public156

Export/import of intermediate copies

No provision found. Unlikely to be permitted

Exhaustion of rights

Not clear when rights are exhausted

Reference: Law No. 65-00 on Copyright of 21 August 2000

El Salvador

Distribution to individuals

Distribution of copies does not seem to be permitted by any means as exception does not even permit making of accessible copies

Distribution to organisations

Same as for distribution to individuals

Export to individuals

Unlikely to be permitted given exception does not appear to permit any distribution of copies

Export to national organizations

Same as for export to individuals

Export to international organisations

Same as for export to individuals

Import by individuals

May not be permitted as importation of copies made legally overseas seems to be an act restricted by copyright157

Import by organisations

Probably not permitted given exception does not appear to permit any distribution of copies and even importation of copies made legally overseas seems to be an act restricted by copyright

Export/import of intermediate copies

No provision found. Unlikely to be permitted

Exhaustion of rights

Distribution right in a tangible copy is exhausted after first sale but the rental and communication to the public rights are not exhausted158

Reference: Law on the Promotion and Protection of Intellectual Property, (Decree No. 604 of 15 July 1993)

Estonia

Distribution to individuals

Exception specifically permits distribution which covers any transfer of ownership of physical copies including rental and lending, but commercial renting unlikely to be permitted as use must be for non-commercial purposes

Distribution to organisations

Probably permitted as distribution direct to visually impaired person does not seem to be required so long as end beneficiary of the organization is a blind person

Export to individuals

Probably permitted

Export to national organizations

May be permitted

Export to international organisations

Same as for export to national organisations

Import by individuals

Accessible copy made under an exception in another country seems to be a “pirated copy” as it is not made with the authorization of the right holder159, but it does not seem to be illegal for it to be imported by an individual

Import by organisations

Some activity could be legal but seems to depend on whether or not it falls within the scope of the restrictions on trade in pirated goods160 which, for example, seems to rule out any “selling” of accessible copies imported.

Export/import of intermediate copies

Not clearly permitted but not clearly prevented either so could be possible, but provision on trade in pirated copies could be relevant

Exhaustion of rights

The first sale or transfer in some other manner of the right of ownership of a copy of a work by the author or with his or her consent in a Member State of the EU or a state which is a contracting party of the EEA Agreement exhausts the right of distribution in tangible copies, but not the rental or lending rights161

Reference: Copyright Act of 11 November 11 1992, as last amended by the Act of 29 October 2004

Fiji

Distribution to individuals

Exception permits copies162 to be provided to disabled people and does not appear to limit how this might be done. Also, no lending right so lending would be possible.

Distribution to organisations

May not be impossible for distribution to be through another organisation, but would have to be another body designated to act under the exception

Export to individuals

No particular restriction found so could be possible

Export to national organizations

Unlikely to be possible because exception only permits activity involving designated bodies and bodies overseas would not be designated

Export to international organisations

Same as for export to national organisations

Import by individuals

An accessible copy made elsewhere is likely to be an “infringing copy” as it is unlikely to have been made by a body able to make it in Belize. However, it is not an infringement of copyright to import copies for private and domestic use so import of accessible copies by individuals is probably legal, even where the accessible copies are of a type not permitted to be made in Fiji163

Import by organisations

There is no exception to the importation of infringing copies by organisations so likely to be illegal

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Definition of the meaning of issuing copies to the public seems to deliver exhaustion of the right for a copy where it has been put into circulation by the right holder anywhere as subsequent importation of those copies into Fiji is not issue to the public164. However, definition of “infringing copies” and so how copyright is infringed by importation is complicated seeming to encompass situations where rights belong to different exclusive licensees in different countries, but there is a provision saying that a copy of a literary or artistic work that has been made, copied, published, adapted, or distributed in an overseas country by or with the licence of the owner of the copyright in the work in that country is not an infringing copy and so its importation is not an infringement.

Reference: Copyright Act 1999

Finland

Distribution to individuals

Not clear what distribution methods are possible.

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear with no clear provision in exception

Export to individuals

May be permitted but not clear

Export to national organizations

Probably not permitted for sound recordings given limitation on organizations which can act; could be permitted for other types of copies

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

May be permitted where the accessible copy is of a type that could be made in Finland, but if it is not the importation appears to be an infringement as it seems likely that an organization will then be found to be importing a copy to distribute it to the public where making the copy would have infringed copyright if made in Finland165

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

The right of distribution in tangible copies, but not the rental and lending rights, is exhausted by the first sale or other transfer of ownership of the copy with the consent of the author, but for certain rights in certain works (films, sound recordings and broadcasts) this only applies where the first sale or transfer is within the EEA166

Reference: Copyright Act, as amended on 9 October 1998

France

Distribution to individuals

Distribution by any means seems to be permitted

Distribution to organisations

Probably permitted so long as organisations are those able to act under the exception

Export to individuals

Could be a problem as the exception is very specific about how disability must be measured against relevant standards in France

Export to national organizations

Likely to be difficult given detailed provisions in the exceptions regarding organizations which can undertake activity and so on

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

Probably less likely to be permitted

Export/import of intermediate copies

No provision found regarding intermediate copies made by organizations making accessible copies167

Exhaustion of rights

Distribution right by sale of a tangible copy is exhausted after the first sale of the copy by or with the consent of the right holder in the EEA168

Reference: Intellectual Property Code as amended to 1 August 2006

Gabon

Distribution to individuals

Making copies not clearly covered by exception so distribution of permanent copies in accessible formats unlikely to be permitted. Making material available by broadcasting or other communication to the public seems to be permitted. No rental and lending rights seem to exist.

Distribution to organisations

Distribution of permanent copies no more likely via organisations

Export to individuals

Unlikely to be lawful if cannot make accessible copies to distribute in the first place

Export to national organizations means

Same as for export to individuals

Export to international organisations

Same as for export to individuals

Import by individuals

Probably permitted

Import by organisations

Much less likely to be permitted

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Not clear when rights are exhausted

Reference: Copyright Law

Georgia

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies does not seem to cover lending (but does cover commercial rental) so lending seems possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, although doubt exists because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Could be permitted as no provision preventing personal imports found

Import by organisations

Given specific right to prohibit imports of copies for the purposes of distribution when made with or without permission of the right holder, importation of accessible copies by organisations does not appear to be legal169

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Subsequent distribution, other than rental, of tangible copies which have been published and lawfully put into circulation by sale is permitted, but this does not seem to apply to copies made overseas as there is a specific right to authorise importation for the purposes of distribution, including copies made with the authorisation of the right holder170

Reference: Law of Georgia on Copyright and Neighbouring Rights

Germany

Distribution to individuals

Distribution of tangible copies by any means seems to be permitted, but probably not by communication to the public by electronic transmission

Distribution to organisations

Probably possible by same means as for distribution to individuals so long as via authorized organisations

Export to individuals

Probably permitted

Export to national organizations

Less likely to be permitted given limitation on which organizations can act under exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

Less likely to be permitted

Export/import of intermediate copies

No provision found. Probably not permitted

Exhaustion of rights

Distribution right in a tangible copy is exhausted after the first sale or other transfer within the EEA by or with the consent of the copyright owner, but the rental right is not exhausted and the lending right gives continuing entitlement to remuneration171

Reference: Copyright Act as amended on 10 September 2003

Greece

Distribution to individuals

Not clear what distribution methods are possible.

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people could be difficult as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, although doubt exists because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Could be a problem with importation as importation of copies made overseas without the right holder’s consent, which would include copies made under exceptions in other countries, seems to be one of the acts restricted by copyright172

Import by organisations

Given specific right to authorise imports of copies and that the exception in Greece does not permit distribution, importation of accessible copies by organisations does not appear to be legal

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Distribution right in a tangible copy is exhausted after the first sale or other transfer within the EU by or with the consent of the copyright owner, but the rental and lending rights are not exhausted173

Reference: Law 2121/1993 as amended to 10 October 2002

Hungary

Distribution to individuals

Exception seems to provide for distribution of accessible copies which would include putting tangible copies into circulation as well as rental and for some types of material lending174. But free uses under exceptions appear to be limited by an overriding provision disallowing distribution without the author’s authorization other than lending between libraries175 so there is some doubt about what types of distribution are possible.

Distribution to organisations

Lending to another library seems to be possible, but it is not clear what, if anything else, is permitted

Export to individuals

Not clear what is permitted given the doubt over what form distribution can take.

Export to national organizations

Same as for export to individuals

Export to international organisations

Same as for export to individuals

Import by individuals

Probably permitted

Import by organisations

Importation of a copy with the purpose of putting the copy into circulation forms part of the distribution right176 so import by organizations of accessible copies made overseas looks unlikely to be permitted.

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Copies put into circulation in Hungary by or with the consent of the right holder seem to exhaust the distribution right other than the rental, lending and importation rights177

Reference: Act No. LXXVI of 1999 on Copyright as amended in 2001

Iceland

Distribution to individuals

Distribution by any means seems possible, including rental and lending, as the exception permits “publishing” which has a broad meaning178, but the exception only permits Braille copies to be produced and distributed.

Distribution to organisations

Distribution by any means via other organizations seems possible

Export to individuals

No specific provision found but probably permitted

Export to national organizations

Could be permitted

Export to international organisations

Could be permitted

Import by individuals

No restriction found so probably permitted

Import by organisations

Probably permitted for Braille copies, but probably not permitted for other accessible formats although it might not be the act of importation as such which is illegal. Importation of copies in the form of audio or video recordings or databases, which could not be made under the exception in Iceland, could be illegal as they are likely to have been made in circumstances in the other country which would not be permitted in Iceland179

Export/import of intermediate copies

No provision found. Might be legal if copies are intermediate for the purposes of producing Braille copies only

Exhaustion of rights

Further distribution of tangible copies after “publication” that has been authorized by the right holder seems to be permitted, but rental and lending rights in musical works, films and sound recordings are not exhausted and for video and audio recordings no aspects of the distribution right are exhausted until after the first sale or other transfer with the authorization of the right holders in the EEA180

Reference: Copyright Act No. 73 of 29 May 1972 as last amended by Act No. 60 of 19 May 2000

Indonesia

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies does not seem to cover lending and only rental for some types of material (films, computer programs and sound recordings) so lending seems possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, although doubt exists because of lack of permission to distribute in the exception and exception only permits Braille copies to be made in any case

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Could be permitted as no provision preventing personal imports found

Import by organisations

Could be permitted for Braille copies as no specific restriction on imports found although could be a problem for subsequent distribution given lack of provision in the exception. Unlikely to be possible for other accessible copies although as for Braille copies it may not be the actual act of importation that is illegal

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Right to publish is broad and covers distribution of both tangible copies and dissemination over the internet. Not clear when right is exhausted, but rental right provided for films, computer programs and sound recordings seems not to be exhausted181

Reference: Law of the Republic of Indonesia Number 19 Year 2002 Regarding Copyright

Ireland

Distribution to individuals

Exception permits “supply” which may include distribution by any means

Distribution to organisations

Distribution via other organisations could be limited to only those organizations that have been designated by the Minister to act under the exception, but even this may not be possible as exception specifies supply of a modified copy to a disabled person

Export to individuals

No particular restriction found. Probably permitted

Export to national organizations means

Unlikely to be legal as organisations outside Ireland are unlikely to be ones that have been designated by the Minister under the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

An accessible copy made elsewhere is likely to be an “infringing copy” as it is unlikely to have been made by a body able to make it in Ireland. However, it is not an infringement of copyright to import copies for private and domestic use so import of accessible copies by individuals is probably legal182

Import by organisations

Probably illegal given definition of “infringing copy” and that importation of “infringing copies” otherwise than for private and domestic use can be illegal

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

The distribution right in a tangible copy is only exhausted after that copy has been put into circulation in an EEA State by or with the agreement of the copyright owner, but this does not exhaust the rental and lending rights183

Reference: Copyright and Related Rights Act, 2000

Italy

Distribution to individuals

Copies can be communicated to the public under the exception which is according to the definition of this restricted act communication by wire or wireless means using any means of diffusion at a distance, such as telegraphy, telephony, radio or television broadcasting184. Not clear what, if any, other distribution might be possible

Distribution to organisations

Probably same as for distribution direct to individuals

Export to individuals

No restriction found. Probably permitted

Export to national organizations

May be permitted

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted as no restriction on personal imports found

Import by organisations

Provision on importation seems to apply only to activity done for gainful intent and other than for personal use, or importation of more than 50 copies185, so importation of accessible copies made overseas by organizations may be possible, but exception would then limit the way in which the copies can be distributed

Export/import of intermediate copies

No provision found. Could be legal subject to restrictions on importation indicated above

Exhaustion of rights

The distribution right in tangible copies is only exhausted after the first sale or other transfer of ownership of the copy in the EU made by the right holder or with his consent, but the rights of rental and lending in those copies are not exhausted, and communication to the public by wire or wireless means and the making of copies from transmissions delivered on demand are also specifically not acts which lead to exhaustion of rights186

Reference: Law for the Protection of Copyright and Neighbouring Rights, as amended on 9 April 2003

Japan

Distribution to individuals

The exception makes different provision depending on the type of work and/or the type of accessible copy so what is permitted is quite complicated – public transmission other than broadcasting and wire diffusion for Braille copies of works, lending for sound recordings of works and distribution of large print copies of school textbooks

Distribution to organisations

As well as the limitations on what distribution methods are possible dependent on material copied and type of accessible copy, for sound recordings only organisations designated by Cabinet Order can act so it seems unlikely that distribution other than through organisations so designated would be permitted

Export to individuals

No provision found but restrictions probably exist due to limits on distribution methods

Export to national organizations

Unlikely to be possible for sound recordings given limitation to activity by designated bodies; could be possible for other types of copy

Export to international organisations

Same as for export to national organisations

Import by individuals

Importation of copies that could not have been made in Japan because of any of the restrictions in the exception seem to amount to an infringement even if imported by an individual187

Import by organisations

Same as for importation by individuals with the added restrictions regarding how any copies imported might be distributed and the specific limitation on distribution or making available of copies other than in accordance with the exception188

Export/import of intermediate copies

No provision found. Could possibly be permitted for some types of intermediate copy but will depend at least on what types of copies can be made in Japan and under what conditions.

Exhaustion of rights

The distribution right as far as it relates to the right of transfer in ownership in the original or a tangible copy of a work appear to be subject to international exhaustion, that is it is exhausted after the first transfer of ownership in that copy by or with the authorization of the copyright owner189

Reference: Copyright Law as amended to 9 June 2004

Kazakhstan

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies covers rental and public lending190 so even lending may not be possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

Export of a copy of a work by a natural person for exclusively personal purposes seems to be generally permitted191

Export to national organizations

Provision specifically permitting export of copies for personal purposes suggests export to organisations unlikely to be legal

Export to international organisations

Same as for export to national organisations

Import by individuals

May be permitted

Import by organisations

Unlikely to be permitted given right to control importation of copies of a work for the purposes of distribution192

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

If tangible copies have been put into circulation in Kazakhstan by sale, then further distribution is not restricted other than by rental and public lending, but provision of broad importation right does not seem to give rise to exhaustion of rights until consent for first distribution in Kazakhstan has been given193.

Reference: Law on Copyright and Neighbouring Rights as entered into force on 10 June 1996

Republic of Korea

Distribution to individuals

Not clear what distribution methods are possible for the Braille copies that can be made. Distribution right in tangible copies covers lending both with and without payment194 so even lending looks doubtful. Sound recordings can only be used at facilities as prescribed by Presidential Decree in any case so no distribution seems possible.

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people same as for distribution to individuals

Export to individuals

No particular restriction found. Could be permitted, although doubt arises because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by at least some means for Braille copies but not for other copies given restrictions in exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

Could be possible for Braille copies which could be made under the exception in Korea, but doubt arises due to absence of possibility of distribution under the exception. Importation of other types of accessible copies unlikely to be legal as seems to be infringement by provision regarding importation of copies that could not have been made in Korea without infringing copyright195

Export/import of intermediate copies

No provision found. Unlikely to be legal except possibly for intermediate copies for making Braille copies

Exhaustion of rights

The right of distribution in a tangible copy is exhausted by the first sale with the authorization of the copyright owner but the commercial rental right in commercial sound recordings is not exhausted196

Reference: Copyright Act No. 3916 of 30 December 1989 as last amended by Act No. 5015 of 6 December 1995

Kyrgyzstan

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies includes sale, rental etc197 so lending may be possible as not clear whether this is a restricted act

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

Export of a copy of a work by a natural person for only personal purposes seems to be generally permitted198

Export to national organizations

Provision specifically permitting export of copies only for personal purposes suggests export to organisations unlikely to be legal

Export to international organisations

Same as for export to national organisations

Import by individuals

May be permitted

Import by organisations

Unlikely to be permitted given right to control importation of copies of a work for the purposes of distribution199

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

If tangible copies of lawfully published works have been put into circulation in Kyrgyzstan by sale, then further distribution of those copies is not restricted other than by rental where the work is a film, sound recording, computer program or a musical work, but provision of broad importation right does not seem to give rise to exhaustion of rights until consent for first distribution in Kyrgyzstan has been given200.

Reference: Law on Copyright and Related Rights of as amended on 6 November 1999

Latvia

Distribution to individuals

Exception specifically permits distribution which covers any transfer of ownership of physical copies. As the economic rights list rental and public lending separately from distribution in the list of economic rights201, distribution may not, though, cover these

Distribution to organisations

Probably permitted as distribution direct to visually impaired person does not seem to be required so long as end beneficiary of the organization is such a person

Export to individuals

Probably permitted

Export to national organizations

May be permitted but not clear

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

May be permitted

Export/import of intermediate copies

Not clearly permitted but not clearly prevented either so could be possible

Exhaustion of rights

The first sale or transfer in some other manner of the right of ownership of a tangible copy of a work by the author or with his consent in a Member State of the EU exhausts the right of distribution in tangible copies202. As the rental and lending rights are provided separately it is assumed that this does not exhaust those rights.

Reference: Copyright Law as amended on 22 April 2004

Lithuania

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies covers rental and lending203 so even lending may not be possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

Distribution right also covers exporting so in the absence of specific provision even export to individuals looks unlikely to be permitted

Export to national organizations

Even less likely to be permitted

Export to international organisations

Same as for export to national organisations

Import by individuals

Distribution right also covers importing so in the absence of specific provision even import to individuals looks unlikely to be permitted

Import by organisations

Even less likely to be permitted

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

First sale or other transfer of ownership of tangible copies by or with the consent of the author in Lithuania exhausts the distribution right, but not the rental and lending rights204

Reference: Law on Copyright and Related Rights of 5 March 2003

Macau

Distribution to individuals

Exception applying to published works permits reproduction and other uses so should be no problem with distribution to individuals

Distribution to organisations

Exception applying to published works does not seem to impose any limitation about distribution through other organisations other than must be non-profit making use

Export to individuals

Probably permitted

Export to national organizations

Could also be permitted

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

Could be permitted to the extent that copies could have been made in Macau

Export/import of intermediate copies

No provision found, but could be permitted to the extent that intermediate copies permit the making of copies that can be made in Macau

Exhaustion of rights

Distribution of tangible copies by or with the consent of the author exhausts the right other than in respect of commercial rental205. Lending does not appear to be covered by the distribution right in any case.

Reference: Decree-Law No. 43/99/M of 16 August 1999

Malaysia

Distribution to individuals

For recordings of television broadcasts distribution by issuing copies to the public is possible and for Braille copies any form of distribution might be permitted subject to the other conditions in the exception being met.

Distribution to organisations

For both types of material/copies, only certain organisations can act prescribed by the Minister or defined in the legislation so there would seem very limited opportunities for distribution via other organisations

Export to individuals

Probably permitted

Export to national organizations

Unlikely to be permitted given the restrictions on organisations which can act under the exceptions

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

Seems unlikely to be legal. Copies made in other countries are ones made without the consent of the copyright owner so could come within the scope of either infringement by importation for commercial dealing or to distribute to an extent that would affect prejudicially the owner of copyright, or the offence of importing an infringing copy into Malaysia otherwise than for private and domestic use206

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Distribution right only refers to right to put copies into circulation not previously put into circulation in Malaysia and not any subsequent distribution or importation of those copies, but commercial rental right is provided separately and so presumably not exhausted in the same way207. There is no lending right.

Reference: Copyright Act 1987 as amended on 15 August 2000

Republic of Moldova

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies does not seem to cover lending (but does cover commercial rental) so lending seems possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

Exception does not seem to permit distribution by export, but there is provision that specifically permits export of a copy of a work by a natural person for his own exclusive use208

Export to national organizations

No particular restriction found but likely to be very doubtful given that only export by a natural person for his use has been specifically provided for

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

Unlikely to be permitted as importing copies of the work for the purposes of distribution, including copies made with the authorization of the author or other holder of copyright, is one of the acts restricted by copyright209

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Not clear when distribution rights are exhausted but the right of commercial rental in certain types of work is clearly independent of the right of ownership of a tangible copy and so is presumably not exhausted210

Reference: Law of the Republic of Moldova on Copyright and Neighbouring Rights as amended on 28 July 2004

Mongolia

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies does not seem to cover lending (but a commercial rental does exist) so lending seems possible211

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people seems unlikely as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, although doubt exists because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Could be permitted as no provision preventing personal imports found

Import by organisations

Could be permitted but likely to be problems with subsequent distribution of imported copies given lack of provision for distribution in the exception

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Not clear when distribution right involving sale or other transfer of ownership is exhausted but the right of commercial rental is separately provided so may not be exhausted

Reference: Law of Mongolia on Copyright as amended on 21 May 1999

Netherlands

Distribution to individuals

Copies can be published under the exception but not clear what distribution methods can be used

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people limited as for distribution to individuals

Export to individuals

May be permitted if covered by “publication”

Export to national organizations

May be permitted but will depend in part what is covered by “publication”

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

May be permitted if subsequent distribution covered by “publication”

Export/import of intermediate copies

No provision found. Probably not permitted

Exhaustion of rights

Distribution right in a tangible copy is exhausted by the first transfer of ownership of that copy in the EEA by or with the consent of the copyright owner, but the rental and lending rights are not exhausted212

Reference: Copyright Act 1912 as amended on 20 January 2006

New Zealand

Distribution to individuals

Does not appear to be any limitation on the distribution method used to provide the end beneficiaries with accessible copies of printed material so long as other conditions in the exception are complied with. Also, non-commercial lending for no charge does not appear to be a restricted act in any case213. For accessible copies of television broadcasts and cable programmes seems to be limited to distribution of tangible copies.

Distribution to organisations

Only bodies prescribed by regulations can undertake activity under the exceptions, but distribution as limited for distribution direct to individuals may be possible via such bodies

Export to individuals

Probably permitted

Export to national organizations

Probably not permitted as organizations in other countries are unlikely to have been prescribed by regulations

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted as importation for private and domestic use is not an infringement of copyright214

Import by organisations

Probably legal where importation is by a body prescribed by regulations in New Zealand and the copy was made under an exception overseas and is of a type that could have been made in New Zealand215

Export/import of intermediate copies

No provision found but could be legal if the copy was made legally overseas and could have been made in New Zealand

Exhaustion of rights

Legal distribution of tangible copies either in New Zealand or overseas seems to exhaust the right other than in respect of rental of sound recordings, films and computer programs216. Lending for no charge does not appear to be covered by the distribution right in any case.

Reference: Copyright Act 1994 consolidated up to Amendment 2005 No. 33

Nicaragua

Distribution to individuals

Not clear what distribution methods are possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, although doubt exists because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

May not be permitted as importation is one of the activities covered by the distribution right217

Import by organisations

Probably not permitted and also likely to be problems with subsequent distribution of imported copies given lack of provision for distribution in the exception

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Not clear when distribution right is exhausted

Reference: Law on Copyright and Related Rights as entered into force on 31 August 1999

Nigeria

Distribution to individuals

Although exception only permits reproduction, the restricted act of distribution seems only to apply to commercial activity and communication to the public by electronic transmission other than by broadcasting does not seem to be a restricted act218, so distribution in a variety of ways seems possible

Distribution to organisations

For Braille copies, distribution via organizations as indicated above for distribution direct to individuals seems to be possible. For sound recordings, organizations that can act must be approved by the Government

Export to individuals

Probably permitted

Export to national organizations

Probably permitted for Braille copies. Could be restricted for sound recordings given requirement for organizations to be approved

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted for copies that could have been made in Nigeria. Less clear for copies that could not have been made in Nigeria as, although copyright appears to be infringed by importation of these and there is a copyright offence by importation, importation of infringing copies by a person for private and domestic use does not seem to be capable of being prohibited219

Import by organisations

Probably permitted for Braille copies that could have been made in Nigeria and for sound recordings so long as importation is by organizations approved in Nigeria

Export/import of intermediate copies

No provision found. Most likely to be possible for intermediate copies for making Braille copies

Exhaustion of rights

Not clear when the distribution right is exhausted

Reference: Copyright Act (Consolidation Ch. 68) 1988 (1999) No. 47 (No. 42)

Norway

Distribution to individuals

Not clear what distribution methods are permissible as exception does not seem to provide for distribution

Distribution to organisations

May be possible by some means, and to organizations permitted to act where relevant, but subsequent distribution to visually impaired people not clear as for distribution to individuals

Export to individuals

May not be permitted given exception does not seem to cover distribution

Export to national organizations

Could be possible by means not restricted by copyright for some types of copy, but difficulty where exception only permits certain organizations to act

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

For copies of a type that could have been made in Norway, importation could be a problem because of lack of clarity about what distribution is possible with copies imported, and, for copies that can only be made by organisations and libraries specified by the King, could be a problem because the body making them was not so specified. For copies made in circumstances, or of a type, not possible in Norway, there could in addition be a problem because they are being imported with the intention of making them available to the public contrary to provisions applying when any copies of a work have been produced abroad under such circumstances that a similar production in Norway would have been unlawful220

Export/import of intermediate copies

No provision found. Unlikely to be permitted

Exhaustion of rights

The distribution right in a tangible copy, other than rental and lending, is exhausted after the first sale by or with the consent of the author in the EEA221

Reference: Act No. 2 of 12 May 1961 relating to Copyright in Literary, Scientific and Artistic Works, Etc, as amended up until 17 June 2005

Panama

Distribution to individuals

Distribution of copies does not seem to be permitted by any means as exception does not even permit making of accessible copies

Distribution to organisations

Same as for distribution to individuals

Export to individuals

Unlikely to be permitted given exception does not appear to permit any distribution of copies

Export to national organizations

Same as for export to individuals

Export to international organisations

Same as for export to individuals

Import by individuals

Probably permitted

Import by organisations

Importation itself may not infringe rights but exception does not appear to permit any distribution of copies so it does not seem possible to distribute copies made legally overseas

Export/import of intermediate copies

No provision found. Unlikely to be permitted

Exhaustion of rights

Distribution right in a tangible copy is exhausted after first sale but the rental and communication to the public rights are not exhausted222

Reference: Law No. 15 of 8 August 1994

Paraguay

Distribution to individuals

Not clear what distribution methods are possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, although doubt exists because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted as, although importation is one of the acts restricted by copyright and is specifically applied to imports into Paraguay regardless of what has been authorized in the country of origin and is also applied to electronic transmission of the work, it does not apply to a copy for personal use, although it may be that this exception to the right only applies to a copy in personal baggage223

Import by organisations

Probably not permitted and also likely to be problems with subsequent distribution of imported copies given lack of provision for distribution in the exception

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Distribution right in a tangible copy is exhausted by the first sale of that copy authorized by the copyright owner, but the rights to control communication to the public, renting and public lending are not exhausted224. However, it is not clear when the importation right, which is provided separately, is exhausted

Reference: Law No. 1328/98 on Copyright and Related Rights

Peru

Distribution to individuals

Not clear what distribution methods are possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, although doubt exists because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted as, although importation is one of the acts restricted by copyright and is specifically applied to imports of copies into Peru which have been reproduced without the right holder’s authorization, which would be the case for copies made overseas under an exception, and is also applied to electronic transmission of the work, it does not apply to a copy for personal use, although it may be that this exception to the right only applies to a copy in personal baggage225

Import by organisations

Probably not permitted and also likely to be problems with subsequent distribution of imported copies given lack of provision for distribution in the exception

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Distribution right in a tangible copy is exhausted by the first sale or other transfer of ownership of that copy authorized by the copyright owner, but the rights to control communication to the public, renting and public lending are not exhausted226. However, it is not clear when the importation right, which is provided separately, is exhausted

Reference: Copyright Act - Legislative Decree No. 822 of 23 April 1996

Poland

Distribution to individuals

Distribution by any means seems to be permitted so long as other conditions in the exception are met

Distribution to organisations

Distribution via other organisations seems possible

Export to individuals

Probably permitted

Export to national organizations

May be more difficult where export is not direct to a disabled person

Export to international organisations

Same as for export to national organisation

Import by individuals

Probably permitted

Import by organisations

May also be permitted

Export/import of intermediate copies

No provision found but may be possible

Exhaustion of rights

Distribution of a tangible copy in the EEA exhausts the right other than with respect to renting or lending227

Reference: Act of 4 February 1994 on Copyright and Related Rights, as amended up to 5 February 2005

Portugal

Distribution to individuals

Distribution by any means seems to be permitted so long as other conditions in the exception are met

Distribution to organisations

Distribution via other organisations seems possible

Export to individuals

Probably permitted

Export to national organizations

May be more difficult where export is not direct to a disabled person

Export to international organisations

Same as for export to national organisation

Import by individuals

Probably permitted

Import by organisations

May also be permitted

Export/import of intermediate copies

No provision found but may be possible

Exhaustion of rights

Distribution of a tangible copy in the EU by sale or other transfer of ownership exhausts the right for that copy228

Reference: Copyright and Related Rights Code, as amended on 24 August 2004

Russian Federation

Distribution to individuals

Not clear what distribution methods are possible. Distribution right in tangible copies does not seem to cover lending (but does cover commercial rental) so lending seems possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, although doubt exists because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Could be permitted as no provision preventing personal imports found

Import by organisations

Given specific right to prohibit imports of copies for the purposes of distribution when made with or without permission of the right holder, importation of accessible copies by organisations unlikely to be legal229

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Subsequent distribution, other than rental, of tangible copies which have been published and lawfully put into circulation by sale is permitted, but this does not seem to apply to copies made overseas as there is a specific right to authorise importation for the purposes of distribution, including copies made with the authorisation of the right holder230

Reference: Law of the Russian Federation No. 5351of 9 July 1993 on Copyright and Neighbouring Rights, as amended on 20 July 2004

Singapore

Distribution to individuals

Exception does not seem to provide for distribution, but once published, distribution of tangible copies does not appear to be an act restricted by copyright in any case, other than rental of sound recordings and computer programs, so lending and permanent transfer of copies seems to be possible. Communication to the public by electronic transmission is a restricted act so it is doubtful that distribution this way is permitted231

Distribution to organisations

So long as organization is of the type able to act under the exception, distribution via other organizations seems to be possible

Export to individuals

Probably permitted

Export to national organizations

Could be permitted by the distribution methods indicated above for distribution to individuals as those acts are not restricted by copyright

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

May be permitted so long as not done to an extent that would affect prejudicially the owner of the copyright. Copies made under exceptions overseas have not been made with the copyright owner’s consent and copyright is infringed by importation of copies for the purposes of distribution where, amongst other things, the copyright owner would be affected prejudicially and where the importer knows, or ought reasonably to know, that the making of the article was carried out without the consent of the owner of the copyright232

Export/import of intermediate copies

No provision found. May be permitted in some circumstances

Exhaustion of rights

So long as the work has been published as determined by the meaning of this in Singapore, then distribution of tangible copies seems to be unrestricted, other than rental of sound recordings and computer programs

Reference: Copyright Act (Chapter 63)

Slovakia

Distribution to individuals

Any distribution method other than one that involves sale seems to be possible, including communication to the public by electronic transmission

Distribution to organisations

There does not appear to be any restriction on using the methods possible for distribution to individuals to distribute via another organisation

Export to individuals

Probably permitted

Export to national organizations

May be possible

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

May be a problem as the exception may not permit copies that have been made overseas to be distributed in that it may be limited only to distribution of copies made under the exception in Slovakia

Export/import of intermediate copies

No provision found. Probably not permitted

Exhaustion of rights

Lawful first sale or other transfer of ownership of a copy in Slovakia exhausts the right of distribution in tangible copies but not the right in subsequent rental or lending233

Reference: Copyright Act, as entered into force on 1 January 2004

Slovenia

Distribution to individuals

Distribution is specifically covered by the exception, but is probably limited to sale or other transfer of ownership of tangible copies given that other activities are provided separately in the list of economic rights234

Distribution to organisations

Probably permitted

Export to individuals

Probably permitted as sale or other transfer of ownership

Export to national organizations

May be permitted so long as within the constraints of the definition of “distribution” or by means not restricted by copyright

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

May be permitted so long as subsequent use within the constraints of the definition of “distribution”

Export/import of intermediate copies

No provision found. May be permitted within the constraints of the definition of “distribution”

Exhaustion of rights

Right of distribution in a tangible copy is exhausted after the first sale or other transfer of ownership of the copy in the EU by or with the consent of the author, but this does not apply to the rental and public lending rights which are provided separately235

Reference: Copyright and Related Rights Act, as amended on 11 May 2004

Spain

Distribution to individuals

Not clear what distribution methods are possible

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, although doubt exists because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

Likely to be problems with subsequent distribution of imported copies given lack of provision for distribution in the exception

Export/import of intermediate copies

No provision found. Unlikely to be legal

Exhaustion of rights

Right of distribution of a tangible copy by sale is exhausted by the first sale of that copy by or with the consent of the right holder, but rental and public lending rights seem not to be exhausted236

Reference: Royal Legislative Decree 1/1996, as amended on 7 January 2000

Sweden

Distribution to individuals

All forms of distribution, including communication to the public by electronic transmission, seem possible

Distribution to organisations

For sound recordings, seems to be limited to organisations as decided by the Government and for other types of copy seems to be similarly limited where distribution is via communication to the public via electronic transmission

Export to individuals

Probably permitted

Export to national organizations

More doubtful, especially for formats and/or distribution methods limited to organizations as decided by the Government

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted

Import by organisations

More doubtful as not clear that an organization can distribute copies it has not made

Export/import of intermediate copies

No provision found. Probably not permitted

Exhaustion of rights

Right of distribution in a tangible copy is exhausted after the first sale or other transfer of ownership of the copy in the EEA by or with the consent of the author, but this does not apply to the rental and lending rights237

Reference: Act on Copyright in Literary and Artistic Works, as amended up to 1 July 2005

Ukraine

Distribution to individuals

Some form of distribution seems to be permitted, but it is not entirely clear what would and what would not be permitted. The acts restricted by copyright include repeated disclosure of a work if carried out by an organization other than that which carried out the first disclosure/publication as well as distribution, rental (but probably not

non-commercial lending) and communication to the public238 and it is not clear which of these activities is covered by the exception

Distribution to organisations

Probably permitted by at least some means

Export to individuals

Possibly permitted by at least some methods but same doubt as for distribution to individuals

Export to national organizations

Probably permitted by at least some means

Export to international organisations

Same as for export to national organisations

Import by individuals

Seems to be illegal as importation is an act restricted by copyright and so an infringement if carried out without authorization from the copyright owner239

Import by organisations

Same as for import by individuals

Export/import of intermediate copies

No provision found. Import likely to be illegal; export in certain circumstances might be possible

Exhaustion of rights

Distribution right in a tangible copy of a lawfully published work is exhausted after being put into circulation in Ukraine by its first sale, but the rental right is not exhausted240

Reference: Law on Copyright and Related Rights of 2001

Uzbekistan

Distribution to individuals

Not clear what distribution methods are possible.

Distribution to organisations

May be possible by some means, but subsequent distribution to visually impaired people not clear as distribution does not appear to be mentioned in exception

Export to individuals

No particular restriction found. Could be permitted, although doubt exists because of lack of permission to distribute in the exception

Export to national organizations

No particular restriction found so could be possible by means not restricted by copyright given lack of provision for distribution in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Could be a problem as importing a copy appears to be part of the restricted act of distribution241, but exhaustion of the distribution right, which covers importation, does not appear to apply only to distribution of copies made with the consent of the author so the right might have been exhausted in respect of copies made and distributed lawfully under exceptions in other countries so that importation is legal

Import by organisations

Same as for importation by individuals

Export/import of intermediate copies

No provision found. Imports may be legal if copies can be lawfully exported from the other country. More doubtful for exports

Exhaustion of rights

Where the ownership of a copy has been transferred lawfully, its further distribution is not restricted, which seems to provide for international exhaustion as there is no restriction regarding the country in which the lawful transfer took place242

Reference: Law of the Republic Of Uzbekistan of 30 August 30 1996 N 272-I on Copyright and Neighbouring Rights as amended to 15 December 2000

United Kingdom

Distribution to individuals

Supply to individuals possible which clearly includes lending and could encompass permanent transfer of ownership of tangible copies and communication to the public by electronic transmission

Distribution to organisations

Distribution via other organisations seems possible so long as they are of the type specified in the exception

Export to individuals

Probably permitted

Export to national organizations

Less clear whether permitted but may be possible if organization is of the type specified in the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted as copies made abroad may be “infringing copies” in the UK where they have been made by bodies not able to legally make them in the UK, but importation by a person of even such a copy is not an infringement if it is imported by him for his private and domestic use243

Import by organisations

Would be a problem where the copy is an “infringing copy” and the importer knows or has reason to believe that this is the case

Export/import of intermediate copies

Provision permitting loan or transfer of intermediate copies would probably not permit their export as a body in another country is not acting in the UK and so does not have the required entitlement to make accessible copies under the UK exception244. Importation only seems possible where the copy is not an “infringing copy”

Exhaustion of rights

Distribution right in a tangible copy is exhausted after the copy has been put into circulation for the first time in the EEA by or with the consent of the copyright owner, but the rental and lending rights are not exhausted245

Reference: Copyright, Designs and Patents Act 1988 as amended up to 31 December 2003

United States of America

Distribution to individuals

Distribution is specifically covered by the exception but appears to be limited to distribution, including by lending, of tangible copies as this is how the distribution right is defined246

Distribution to organisations

Probably the same as for distribution to individuals so long as via an organization of the type authorized to act under the exception

Export to individuals

Probably permitted but only for copies in the special formats permitted under the exception

Export to national organizations

Less likely to be permitted given restrictions on organizations which can act under the exception

Export to international organisations

Same as for export to national organisations

Import by individuals

Probably permitted as there is an exception to the infringement of the distribution right by importation of copies acquired outside the United States for copies imported for the private use of the importer or in a person’s personal baggage247

Import by organisations

May be possible for Braille copies and importation of a very small number of copies for loan, but provision concerning when copyright is infringed by importation and when importation of copies made other than in the United States and Canada is prohibited is complicated248

Export/import of intermediate copies

No provision found. Unlikely to be permitted

Exhaustion of rights

The owner, or a person authorized by the owner, of a lawfully made tangible copy can sell or otherwise dispose of that copy without the authorization of the copyright owner, but the commercial rental right in a sound recording (including any recorded musical work) or a computer program is not exhausted and a person does not become an owner entitled to sell or otherwise dispose of a copy without the authorization of the copyright owner when they only rent, lease or loan the copy. Also, the infringement of copyright by importation appears to mean that in general the distribution right is only exhausted for a copy where the right has been exercised in respect of that copy in the United States249

Reference: United States Code – Title 17, as amended to 3 December 2004

* The views and opinions expressed in this Study are the sole responsibility of the author. The Study is not intended to reflect the views of the Member States or the Secretariat of WIPO.

2 For convenience, copyright is the intellectual property right that is referred to throughout this Study. However, rights related to copyright may be relevant to the issues explored in many cases and the most relevant international conventions and treaties applying to both copyright and related rights are explored in Chapter 2. The presence or absence of exceptions in national laws as explored in Chapter 3 has not, however, been as thorough for rights related to copyright. Nevertheless, many of the conclusions drawn are likely to have equal validity where rights related to copyright lead to a barrier to access to the written word for visually impaired people.

3 The World Blind Union represents 162 million blind and visually impaired persons from about 600 different organisations in 158 countries – see website at www.worldblindunion.org

4 The DAISY Consortium was formed by talking book libraries in 1996 to lead the worldwide transition from analogue to digital talking books. Members of the Consortium promote the DAISY Standard for digital talking books – see website at http://www.daisy.org/

5 The IFLA Libraries for the Blind Section promotes national and international cooperation and encourages research and development in the area of library services for the blind and other people with print disabilities – see website at http://www.ifla.org/VII/s31/index.htm. IFLA is the International Association of Library Associations and Institutions

6 The Policy Position agreed by the World Blind Union (WBU), the DAISY Consortium and IFLA Libraries for the Blind Section (LBS) is available at http://www.euroblind.org/fichiersGB/joint_policy.htm

7 Automated Rights Management Systems and Copyright Limitations and Exceptions prepared by Nic Garnett, Principal Consultant, Interight.com - see https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=59952

8 See UNESCO/WIPO/WGH/I/3 of 3 January 1983 for a report of the Working Group which took place on 25-27 October 1982 and UNESCO/WIPO/WGH/I/2 for the study by Mrs Wanda M Noel on the Application of the Berne Convention for the Protection of Literary and Artistic Property and the Universal Copyright Convention to Material for the Visually and Auditory Handicapped

9 See Annex II of IGC (1971)/VI/11 of 12 March 1985, a report on Copyright Problems Raised by the Access by Handicapped Persons to Protected Works distributed for the Twenty-Fourth Session (9th Extraordinary) of the Executive Committee of the Berne Union and the Sixth Ordinary Session of the Committee of the 1971 Convention of the Intergovernmental Committee of the Universal Copyright Convention. The report was produced by the Secretariats with the assistance of Mrs Wanda M Noel.

10 See IFLA Publications 21, Copyright and Library Materials for the Handicapped by Françoise Hébert and Wanda Noel, ISBN 3-598-20381-0

11 The presentations made at the WIPO Information Meeting on Digital Content for the Visually Impaired are available at https://www.wipo.int/documents/en/meetings/2003/digvi_im/digvi_im_03_1rev1.htm

12 The International Publishers Association has a constituency of book and journal publishers world-wide, assembled into 78 publishers associations at national, regional and specialised level – see website at http://www.ipa-uie.org/

13 See agenda item 129 of the World Library and Information Congress: 70th IFLA General Conference and Council, August 2004 – see http://www.ifla.org/IV/ifla70/prog04.htm#129

14 First discussed during the work leading up to the Stockholm Revision Conference of the Berne Convention and embodied in Article 9(2) of the Paris Act of that Convention providing that “It shall be a matter for legislation in the countries of the Union to permit reproduction of [literary and artistic works protected by the Convention] in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

15 WTO Panel on Section 110(5) of the US Copyright Act: Report of the Panel, WT/DS/160/R, 15 June 2000 – see http://www.wto.org/english/tratop_e/dispu_e/distab_e.htm

16 See UNESCO/WIPO/WGH/I/3 of 3 January 1983 for a report of the Working Group which took place on 25-27 October 1982 and UNESCO/WIPO/WGH/I/2 for the study on the Application of the Berne Convention for the Protection of Literary and Artistic Property and the Universal Copyright Convention to Material for the Visually and Auditory Handicapped

17 See Annex II of IGC (1971)/VI/11 of 12 March 1985, a report on Copyright Problems Raised by the Access by Handicapped Persons to Protected Works distributed for the Twenty-Fourth Session (9th Extraordinary) of the Executive Committee of the Berne Union and the Sixth Ordinary Session of the Committee of the 1971 Convention of the Intergovernmental Committee of the Universal Copyright Convention

18 See SCCR/9/7 of 5 April 2003 for the WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment, which is available at https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=16805

19 See SCCR/14/5 of 27 April 2006 for the WIPO Study on Automated Rights Management Systems and Copyright Limitations and Exceptions, which is available at https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=59952

20 The Universal Copyright Convention (UCC) has not been considered in detail as it seems most unlikely that this Convention could impose any limitation on exceptions not present in other conventions and treaties, and it is extremely rare now for a country to be bound by the UCC and not at least either the Berne Convention or the WTO TRIPS Agreement. The UCC in any case leaves the task of defining exceptions to national legislation so that limitations on the scope of permitted exceptions are imposed only by such concepts as the need to provide “adequate and effective protection”, not to exceed the “spirit” of the Convention and not to apply exceptions arbitrarily.

21 Article 13 states that “Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”. Note that the test refers to exploitation of “works” whereas not all the subject matter required to be protected by Part II, on Copyright and Related Rights, of the TRIPS Agreement appears to come within the scope of this term so the test does not clearly apply other than to TRIPS’ requirements to protect “works”. Note also that the 3rd step of the test is a measure of proportionality with respect to the legitimate interests of the right holder (and not the author as in the Berne Convention), which might lead to different interpretation. In particular, a right holder who is not the author is unlikely to have moral rights. In any case, the Berne Convention provisions on moral rights are not incorporated into the TRIPS Agreement.

22 Article 10(1) of the WCT specifies that “Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under the Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.”

23 Article 10(2) of the WCT specifies that “Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.”

24 The agreed statement concerning Article 10 of the WCT is as follows:

“It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.

It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.”

25 The agreed statement concerning Article 1(4) of the WCT is as follows:

“The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention.”

26 Article 16 of the WPPT provides as follows:

“(1) Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of performers and producers of phonograms as they provide for in their national legislation, in connection with the protection of copyright in literary and artistic works.

(2) Contracting Parties shall confine any limitations or exceptions to rights provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the performance or phonogram and do not unreasonably prejudice the legitimate interests of the performer or of the producer of the phonogram.”

27 See http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&numdoc=32001L0029&model=guichett&lg=en

28 The exceptions and limitations “shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.”

29 See http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=31996L0009&model=guichett

30 See Annex 1 for the principle sources of information.

31 This Study does not, of course, provide a definitive list of countries which have specific exceptions to copyright for the benefit of visually impaired people as there are inevitably likely to be countries where provision does exist but it has not been identified. Moreover, in other countries specific exceptions which have been found may well have been updated more recently than the information in the sources searched so the provision that has been found no longer reflects the current position.

32 In particular, reliance in many cases on translations of the original legislation is likely to mean that there are some errors in the interpretation of the scope of the exceptions that have been found.

33 Some other countries which do provide specific exceptions to deal with a print disability also have an exception permitting subtitling and other modification of a copy of a broadcast, for example New Zealand, Malaysia and the United Kingdom.

34 Audio description is the modification of audiovisual material by the addition of narration that describes all significant visual information such as body language, facial expression, scenery, action, costumes. It is added in the gaps between the dialogue on the normal sound track and attempts to cover anything that is important to conveying the plot of the story, event or image.

35 Section 66 provides that the legal right to use a work without the author’s prior consent includes by implication the right to transform it, by translation or otherwise, to the extent necessary for its authorized use

36 See the DAISY Consortium website - http://www.daisy.org/ - for more information about the DAISY standard and also the presentation by Mr Francisco Javier Martinez Calvo, Board Member of the DAISY Consortium, to the WIPO Information meeting on Digital Content for the Visually Impaired – see https://www.wipo.int/documents/en/meetings/2003/digvi_im/digvi_im_03_1rev1.htm

37 New exceptions for the benefit of people with disabilities were announced in May 2006 – see http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/Page/Media_Releases_2006_Second_Quarter_14_May_2006_-_Major_Copyright_Reforms_Strike_Balace_-_0882006 - but the analysis in this study is based on existing law in Australia.

38 This only applies where works or other subject matter are made available on demand

39 The 3-step test does not clearly apply to the production of Braille or other special formats for blind people; it may only apply where other accessible formats are made

40 The test only seems to apply to the disposal of a copy of the work made under the exception

41 SCCR/10/2 Rev. published on 4 May 2004 – see https://www.wipo.int/documents/en/meetings/2003/sccr/doc/sccr_10_2_rev.doc

42 SCCR/14/5 published on 27 April 2006 – see https://www.wipo.int/edocs/mdocs/sccr/en/sccr_14/sccr_14_5.doc

43 Article 16 of the Berne Convention provides as follows:

44 Footnote 6 of the WCT sets out an agreed statement concerning Articles 6 and 7 as follows: “As used in these Articles, the expressions “copies” and “original and copies”, being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects.” A similar agreed statement can be found in footnote 7 of the WPPT.

45 Article 6(2) of the WCT states that “Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author”. Similar provision can be found in Articles 8(2) and 12(2) of the WPPT regarding the distribution right granted to performers and producers of phonograms respectively.

46 Article 6 of the TRIPS Agreement says that “For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.” (Article 3 concerns the provision of national treatment and Article 4 concerns obligations relating to the extension of most-favoured nation treatment to nationals of all Members.)

47 See footnote 43 above.

48 The agreed statement at footnote 8 of the WCT says that “It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention.”

49 See footnote 1 of the WCT which says that “The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention.”

50 Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

51 As well as the 27 member States of the European Union (EU), this includes Norway, Iceland and Liechtenstein which are not in the EU but are members of the European Economic Area (EEA). The EU Directives in the copyright area are incorporated into the EEA Agreement. The references in Directives to exhaustion of rights as a result of activity that has occurred in the EU are then read as references to the EEA.

52 See recitals 28 and 29 of the copyright Directive

53 Council Directive 92/100/EEC of 19 November 1992 on rental and lending right and on certain rights related to copyright in the field of intellectual property

54 See the 13th and 14th recitals of the rental Directive in particular

55 Article 5(1) of the copyright Directive is as follows:

Temporary acts of reproduction referred to in Article 2 which are transient or incidental, which are an integral and essential part of a technological process and the sole purpose of which is to enable:

56 Recital 33 of the copyright Directive, amongst other things, says that, to the extent that they meet the conditions specified, the temporary copy exception “should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognized and used by industry, to obtain data on use of the information”

57 See footnote 47 above

58 See footnote 55 above

59 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market

60 Derogation from the public lending right is also possible so that lending may only be a remuneration right and/or may not apply to all establishments that are accessible to the public.

61 See website at http://www.bibliociegos.cl/

62 The Copyright Office consultation, including detailed elaboration of some of the amendments proposed to the Copyright Act, 1957, as amended to 1999, can be found on the Office’s website at http://copyright.gov.in/Logon.aspx

63 See proposed Section 52(1)(za) on page 33 of the elaborated amendments to copyright law proposed in India at http://copyright.gov.in/View%20Comments.pdf

64 The full response can be found on the website of Xavier’s Resource Centre for the Visually Challenged – see http://www.xrcvc.org/files/CopyrightSuggestions.pdf

65 See website at http://www.blind.org.ph/about/aboutus.html

66 See the DAISY Consortium website - http://www.daisy.org/ - for more information about the DAISY standard and also the presentation by Mr Francisco Javier Martinez Calvo, Board Member of the DAISY Consortium, to the WIPO Information meeting on Digital Content for the Visually Impaired – see https://www.wipo.int/documents/en/meetings/2003/digvi_im/digvi_im_03_1rev1.htm

67 See pages 44 and 45 of the WIPO study at https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=59952

68 See website at http://www.lass.lt/en/lab/index.htm

69 See the Blind Bookworm website at http://www.panix.com/~kestrell/

70 See website at http://www.bibliociegos.cl/

71 See website at http://www.dedicon.nl/catalogus.do?objectId=88084&parentId=71

72 See website at http://www.cnib.ca/library/

73 See website at http://www.rfbd.org/

74 See website at http://www.ncbi.ie/index.php

75 See website at http://www.rnzfb.org.nz/

76 See WBU website at http://www.worldblindunion.org/

77 See IFLA website at http://www.ifla.org/act-serv.htm

78 The eIFL-IP website can be found at http://www.eifl.net/services/services_ip.html

79 See website at http://www.nlb-online.org/

80 See licensing scheme on CLA website at http://www.cla.co.uk/licensing/vip.html

81 See licensing scheme on MPA website at http://www.mpaonline.org.uk/Music_Licensing/Copyright_Licensing_for_Visually_Impaired_People/index.html

82 See the website at http://www.revealweb.org.uk/

83 See website at http://www.rnib.org.uk/xpedio/groups/public/documents/code/InternetHome.hcsp

84 See website at www.fundacaodorina.org.br

85 See website at http://www.cnib.ca/library/index.htm

86 “Commercial availability” means “available on the Canadian market within a reasonable time and for a reasonable price and may be located with reasonable effort”

87 See Section 30.1(1)(c) of the Copyright Act as amended to 3 March 2006 at http://laws.justice.gc.ca/en/C-42/230536.html#rid-230548

88 See the Final Report of the Pilot Project for an Electronic Clearinghouse for Alternative Format Production published by the Canadian Library Association at http://www.cla.ca/top/releases/CH_Pilot_FINAL%20REPORT_EN.pdf

89 See pages 37 and 38 of Chapter 4 of the EUAIN report on Accessing & Protecting Content by N. Garnett, D Mann & M White – also available on the EUAIN website at http://www.euain.org/modules/wfsection/index.php?category=254

90 EUAIN, the European Accessible Information Network – see http://www.euain.org/

91 See website at http://www.nimac.us/

92 See AAP press release at http://www.publishers.org/press/releases.cfm?PressReleaseArticleID=321

93 See website at http://www.dedicon.nl/catalogus.do?objectId=88084&parentId=71

94 See website at http://www.rgbs.ru/en/std/

95 See website at http://www.braillenet.org/

96 See website at http://www.serveur-helene.org/

97 See website at http://www.bibliotheque-helene.org

98 See the website at http://www.bookshare.org/web/Welcome.html

99 See page 51 of the study at https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=59952

100 See website at http://www.dbb.dk/English/default.asp

101 See website at http://www.visionaustralia.org.au/info.aspx?page=514

102 An exposure draft of the Copyright Amendment Bill 2006 dealing with exceptions and other digital agenda review measures was published in September 2006 – see http://www.ag.gov.au/agd/WWW/agdhome.nsf/Page/RWPCC1088C809F10F7ACA2571E800095372

103 See website at http://www.euain.org/

104 See the case studies at http://wiki.euain.org/doku.php?id=wiki:case_studies

105 See David Mann’s presentation on behalf of the World Blind Union to the WIPO SCCR Information Day on 3 November 2003 - https://www.wipo.int/documents/en/meetings/2003/digvi_im/pdf/digvi_im_03_mann.pdf

106 Pages 29 to 31 of the WIPO Study on Automated Rights Management Systems and Copyright Limitations and Exceptions prepared by Nic Garnett elaborates on work by two technology companies in particular involved in the process of enabling people with a print disability to access information – see https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=59952

107 See for example the presentation given by Francisco Javier Martinez Calvo on behalf of the DAISY Consortium to the WIPO Information Meeting on Digital Content for the Visually Impaired in November 2003 – see https://www.wipo.int/documents/en/meetings/2003/digvi_im/pdf/digvi_im_03_calvo.pdf

108 See for example the paper on The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries by Ruth L Okediji, Issue Paper No. 15, UNCTAD – ICTSD Project on IPRs and Sustainable Development, published in March 2006 – see http://www.iprsonline.org/unctadictsd/docs/ruth%202405.pdf. UNCTAD is the United Nations Conference on Trade and Development and ICTSD is the International Centre for Trade and Sustainable Development

109 These are the rights governed by the EU copyright Directive. This does not necessarily mean, therefore, that there cannot be an exception also to other rights, particularly the public performance right.

110 See http://www.unhchr.ch/udhr/lang/eng.htm for the text of the UDHR

111 Article 19 of the UDHR provides as follows:

112 Article 27 of the UDHR provides as follows:

113 Article 17 of the UDHR provides as follows:

114 See http://www.un.org/esa/socdev/enable/dissre00.htm

115 The Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities adopted the draft text of the Convention at its 8th Session in August 2006 - see http://www.un.org/esa/socdev/enable/rights/ahc8adart.htm#art9

116 See https://www.wipo.int/tk/en/hr/

117 The Panel Discussion was organised by WIPO in collaboration with the Office of the United Nations High Commissioner for Human Rights – see https://www.wipo.int/tk/en/hr/paneldiscussion/

118 Intellectual Property and the Right to Culture by Ms Christine Steiner – see https://www.wipo.int/tk/en/hr/paneldiscussion/papers/pdf/steiner.pdf

119 The provision in the WIPO draft copyright law is as follows:

“Notwithstanding the provisions of Sections 6(1)(a) and (d), it shall be permitted without authorisation of the author or other owner of copyright to reproduce a published work for visually impaired persons in an alternative manner or form which enables their perception of the work, and to distribute the copies exclusively to those persons, provided that the work is not reasonably available in an identical or largely equivalent form enabling its perception by the visually impaired; and the reproduction and distribution are made on a non-profit basis.

The distribution is also permitted in case the copies have been made abroad and the conditions mentioned above have been fulfilled.”

120 See pages 3 and 4 of the paper at http://www.ifla.org/IV/ifla70/papers/147e-Roos.pdf

121 See section 6.2 starting on page 28 of IFLA Publications 21, Copyright and Library Materials for the Handicapped by Françoise Hébert and Wanda Noel, ISBN 3-598-20381-0

122 See for example pages 15-16 of the WIPO Study on Automated Rights Management Systems and Copyright Limitations and Exceptions prepared by Nic Garnett – see https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=59952

123 The second paragraph of the proposed exception in the WIPO draft law is as follows:

124 See the presentation by Ms Marijke Van Bodengraven, Chair, Libraries for the Blind Section, IFLA at the WIPO Information Meeting on Digital Content for the Visually Impaired in November 2003 – see https://www.wipo.int/documents/en/meetings/2003/digvi_im/digvi_im_03_1rev1.htm

125 Consideration of Accessibility to Information and Communication has taken place since the adoption of Rule 5 of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities – see http://www.un.org/esa/socdev/enable/disacc.htm. In particular the Manila Design Recommendations on Accessible Information and Communication Technologies – see http://www.un.org/esa/socdev/enable/manilarecom.htm - and the WorldEnable Validator (Beta version) which is a technical implementation of the Manila Accessible ICT Design Recommendations – see http://www.worldenable.net/wevalidator.htm - recognise the increased access for people with a disability where appropriate standards of Universal Design are adopted.

126 New exceptions for the benefit of people with disabilities were announced in May 2006 – see http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/Page/Media_Releases_2006_Second_Quarter_14_May_2006_-_Major_Copyright_Reforms_Strike_Balace_-_0882006 - but the analysis in this study is based on existing law in Australia.

127 The copyright in a published edition that exists separately in Australian law from the copyright in literary etc works would not, in any case, be infringed by communication of the copied work in an accessible format to the public.

128 Amendments to the law that come into force on 1 January 2006 do make provision for the enjoyment of exceptions where DRMs have been applied, other than where works have been made available on demand on agreed contractual terms, but at the time of writing this study, only a copy of the law in Finnish has been located and it has not been possible to ascertain the precise details of changes made in this and other areas

129 A draft law proposes coverage of all disabled people, but the above analysis is based on the law in force in January 2000

130 An Act to provide books for adult blind, approved March 3, 1931 (2 U.S.C. 135a; 46 Stat. 1487)

131 The electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act)

132 See Article 12

133 See for example section 10 defining an “infringing copy” and section 37 defining infringement by importation for sale or hire

134 See section 135ZQ

135 See paragraphs 9.5 to 9.9 of the Short Guide to Copyright Law in Australia - http://www.ag.gov.au/copyright/shortguide#9

136 See Sections 16 and 16a

137 See Article 15.2

138 See Article 15.3 and 15.2

139 See Article 16

140 See Article 39

141 See Article 16

142 The provision in Belize only relates to copies of television broadcasts or cable programmes and so would cover audio-described copies of these made for visually impaired people but not any types of accessible copies made for people with a print disability.

143 See sections 3 and 33

144 See Articles 5 and 29

145 See Article 18(2)11

146 See Article 18a

147 See Section 81(1)(a)

148 See section 27

149 See sections 2 and 27

150 See section 27.1 and the Book Importation Regulations

151 See Article 20(2)

152 See Article 20(2)

153 See Article 14(2)

154 Section 77 is particularly relevant as it makes a person liable to a fine for intentional or grossly negligent importation of a copy of a work with a view to making available to the public where the copy has been produced outside Denmark under such circumstances that a similar production in Denmark would have been in conflict with the law

155 See Section 19

156 See Articles 19 and 16

157 See Article 7(e)

158 See Article 7(d)

159 See section 801(1)

160 See sections 802 and 811

161 See section 13(2)

162 The provision in Fiji only relates to copies of television broadcasts or cable programmes and so would cover audio-described copies of these made for visually impaired people but not any types of accessible copies made for people with a print disability.

163 See sections 12 and 35

164 See section 9

165 See Article 56a

166 See Articles 19 and 46 to 48

167 The publishers’ electronic copies that may be required to be stored centrally under the exception seem unlikely to be transferable to other countries

168 See Article L122-3-1

169 See Article 18(1)(c)

170 See footnote 81

171 See Articles 17 and 27

172 See Article 3.1(i)

173 See Article 3.1(d) and (e)

174 See definition of distribution in Article 23

175 See Article 40

176 See Article 23(2)

177 See Article 23(5)

178 See Article 2

179 See Article 54

180 See Articles 24 and 46

181 See Articles 1, 2 and 49

182 See Sections 44 and 45

183 See Section 41

184 See Article 16

185 See Article 171ter

186 See Articles 16, 17 and 18bis

187 See Article 113

188 See Article 49 that specifically limits uses for other purposes than permitted by exceptions of copies made under various exceptions

189 See Article 26bis

190 See Article 16(2)2

191 See Article 27

192 See Article 16(2)3

193 See Article 16

194 See Article 2(15)

195 See Article 92

196 See Article 43

197 See Article 16(2)

198 See Article 19(2)

199 See Article 16(2)

200 See Article 16

201 See Section 15

202 See Section 32

203 See Article 15

204 See Article 16

205 See Article 58

206 See Sections 36, 41 and definition of infringing copy in section 3

207 See Section 13

208 See Article 22

209 See Article 10(2)(c)

210 See Article 10(3)

211 See Article 9

212 See Article 12b

213 See definition of “rental” in Section 2

214 See Section 35

215 See Sections 35 and 12 for infringement by importation and meaning of infringing copy

216 See Section 9

217 See Articles 23 and 2.6

218 See Section 5

219 See Sections 14, 18 and 36

220 See Section 54

221 See Section 19

222 See Article 40

223 See Articles 25 and 29

224 See Article 28

225 See Articles 31 and 35

226 See Article 34

227 See Article 51

228 See Article 68(5)

229 See Article 16

230 See Article 16

231 See Section 24, for definition of publication, and Section 26, regarding acts restricted by copyright

232 See Section 32

233 See Sections 23 and 18

234 See economic rights in Article 22 and definition of right of distribution in Article 24

235 See Articles 43, 24, 25 and 36

236 See Article 19

237 See Article 19

238 See Article 15 and definitions in Article 1

239 See Article 15.3(11) and Article 50

240 See Article 15.7

241 See Article 22

242 See Article 22

243 See Sections 27 and 22

244 See Section 31C

245 See Sections 18 and 18A

246 See the list of exclusive rights in Section 106

247 See Section 602

248 See Sections 602 and 601

249 See Sections 109 and 602