Appeared in the Toronto Star on April 18, 2016 as Copyright Law for the Blind Needs Fine-Tuning
As the political world was focused on the Liberal government’s inaugural budget last month, Navdeep Bains, the Minister of Innovation, Science and Economic Development, introduced his first bill as minister by quietly moving ahead with plans to reform Canadian copyright law to allow for the ratification of an international treaty devoted to increasing access to copyrighted works for the blind.
The World Intellectual Property Organization’s Marrakesh Treaty expands access for the blind by facilitating the creation and export of works in accessible formats to the more than 300 million blind and visually impaired people around the world. Moreover, the treaty restricts the use of digital locks that can impede access, by permitting the removal of technological restrictions on electronic books for the benefit of the blind and visually impaired.
The Canadian decision to ratify the Marrakesh Treaty is long overdue. The Conservatives announced plans to do so in last year’s budget but waited to table legislation days before the summer break and the election call. With that bill now dead, the Liberals have rightly moved quickly to revive the issue.
The treaty (and the Canadian bill) addresses three key issues. First, the bill establishes a new rule that permits non-profit organizations acting on behalf of persons with a print disability to reproduce copyright works in accessible formats without the need for permission from the copyright holder. This ensures that more accessible works will be created and distributed in Canada.
Second, once an accessible version of the work is created, the bill also allows the non-profit organization to make it available upon request to persons with print disabilities in other countries that are part of the treaty. With many countries signing on, this approach offers the potential to significantly increase the availability of accessible works with exchanges across borders.
Third, the bill amends the overly restrictive digital lock rules enacted in the 2012 copyright reforms. The Conservative government claimed that an exception for the blind addressed concerns that the law could create significant access restrictions, but the reforms represent a tacit admission that the exception is ineffective. Interestingly, the same restrictive language is used in an exception designed to address privacy concerns, suggesting that further copyright reforms are needed.
While the introduction of the bill represents an excellent first step, upcoming committee hearings offer the opportunity to fine tune the Canadian approach, which is more restrictive than required by the treaty. For example, the Canadian bill envisions the possibility of establishing additional fees payable by the non-profit organization to copyright collectives. The Marrakesh Treaty does not require adding royalty payments and many countries (including the United States) do not have such a provision.
The Canadian approach to exporting accessible works to other countries is also unnecessarily complex. The export exception does not apply to works that are “commercially available” “within a reasonable time and for a reasonable price” in the other country.
The limitation seems likely to create uncertainty and legal risks for those using the exception, creating the danger that some organizations may be reticent about exporting works for fear of running afoul of the law. The limitation is not found in proposed implementing legislation developed by international groups representing libraries and those with print disabilities.
Despite its shortcomings, the decision to focus on the world’s first user rights treaty sends a strong signal that the government recognizes the importance of ensuring that the law does not unduly restrict access to copyright works. With the Marrakesh Treaty nearly reaching the 20 ratifications necessary to take effect, the government must move quickly if it wants Canada to stand as one of the original group of ratifying countries.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
