RLI 281
uS aND caNaDiaN DiSaBiLity POLiciES, rEcENt cHaLLENGES, aND uS aND caNaDiaN cOPyriGHt Law
17
DECEMBER 2012 RESEARCH LIBRARY ISSUES: A QUARTERLY REPORT FROM ARL, CNI, AND SPARC
Unlike accessibility law, copyright law is under federal jurisdiction. Copyright issues affecting
persons with disabilities are dealt with solely at the federal level in the Copyright Act.
The Canadian copyright landscape has changed appreciably over the last six months. New copyright
legislation was passed on June 29, 2012, and is known as Bill C-11, or the Copyright Modernization Act.
As of October 16, 2012, the legislation awaits “proclamation” in whole or in part, which is expected at any
time. In addition, the Supreme Court of Canada (SCC) made judgments in July 2012 on five simultaneous
copyright decisions. A key point emerging from these decisions is that there is a far greater scope of fair
dealing in the educational sector than the Copyright Board had recognized previously. The SCC ruled
that the provision by teachers of multiple copies of short excerpts, and the making of copies of material
prescribed by a teacher, may be fair; the purpose of the student is relevant.
Bill C-11 includes general provisions of interest regarding accessibility in addition to provisions solely
focused on disabilities issues. The legislation provides that “organizations acting for the benefit of persons
with a ‘perceptual disability’ can copy a work protected by copyright in alternate formats such as Braille,
talking books or sign language.”41
Provisions in Bill C-11 will make the following three changes, according to the Library of Parliament
summary.42 First, the bill provides “amendments to the exceptions available to educational institutions,
libraries, museums, archives and persons with a ‘perceptual disability’ in order to facilitate the use of
digital technologies and make the provisions more technologically neutral.”43
Second, there are exceptions for persons with perceptual disabilities (sections 32 and 32.01 of
the Act) and an exception for nonprofit organizations acting for the benefit of persons with a print
disability to make a copy of a work in a format specifically designed for persons with a print disability.
This includes the ability to send a copy of the work to similar organizations abroad, as long as the work
being adapted is by a Canadian author or a national from the country to which the adapted work is being
exported.
Finally, the liability of a nonprofit organization that makes a good-faith mistake regarding an author’s
nationality is limited. This amendment would clarify or would allow the courts to take into account good-
faith efforts taken by the nonprofit organization when awarding damages, and copyright owners would
then be able to seek only an injunction against the nonprofit organization rather than damages.
Licensing Issues
Librarians seeking to provide accessible content for their patrons must also grapple with licensing,
rather than purchasing, electronic content, thus licensing is important to ensuring accessibility. Since
the growing adoption of e-journals in the 1990s, content provided by libraries is increasingly acquired
digitally through a license that provides specific terms of use. This practice may significantly limit
libraries’ ability to make such materials as e-journals, databases, e-books, and online textbooks accessible,
since accessibility features may not be built into the vendor platform or the terms and conditions of the
license.
In cases where library materials are licensed, the terms of use may be governed by the private law
agreement—the license—rather than simply by the public law of the US Copyright Act or Canadian
copyright law. Although traditional copyright law remains the default in the absence of explicit language,
the terms of a license can affect libraries’ ability to make works fully accessible.
Previous Page Next Page