August 2007

Part 1: Introduction
Part 2: Overview of copyright
Part 3: Individuals with a print disability
Part 4: Print disability organisations
Part 5: Educational provisions of the Copyright Act
Part 6: Copyright owners
Part 7: Glossary

Print disability organisations

This Part sets out what print disability organisations can do under the Copyright Act. Note that educational institutions are also, by definition, print disability organisations for the purposes of the Copyright Act. If your organisation is an educational institution, you should read Part 5 as well.

Amendments to the Copyright Act passed in 2006 introduced exceptions allowing individuals with disabilities to make copies in accessible formats, or to get others to make copies for them, in some situations. However, the amendments do not greatly affect what print disability organisations can do. This is because the new “special case” exception does not apply if any other provision in the Copyright Act covers the situation.  In most cases, therefore, print disability organisations will continue to rely on the pre-existing print disability provisions.

In some respects, the provisions in the Copyright Act do not go as far as print disability organisations would like, because of the need to maintain a balance between various interest groups and comply with Australia’s international obligations. Print disability organisations will still need to deal with copyright owners if they wish to, for example, make copies available in accessible formats online without checking for commercial availability.

In many cases, Australian and overseas print disability organisations have developed good relationships with publishers and other copyright owners whose material they wish to use. In light of the consultations conducted for this project, we believe that the best approach to solving the administrative difficulties print disability organisations currently face is to develop and build on such relationships. To this end, we have drafted a Sample Agreement for publishers and print disability organisations. The Agreement provides for:
•    simplified procedures for checking for commercial availability (including when accessible copies are delivered online);
•    making copies in accessible formats when material is commercially available in the relevant format but is not accessible to people with a print disability (or to a particular person with a print disability); and
•    terms and conditions for the provision of digital files by publishers to print disability organisations.

4.1    What is a print disability organisation?

Your organisation is a print disability organisation (in Copyright Act terms, an “institution assisting persons with a print disability”) if it is an educational institution, or if:
•    at least one of the organisation’s principal functions is to provide accessible copies of literary and dramatic works to people with a print disability; and
•    the Attorney-General has declared the organisation to be an institution assisting people with a print disability.
If your organisation is an educational institution, you will in some cases rely on the educational provisions, rather than the print disability provisions, to copy for those of your students with a print disability. Part 5 sets out the differences between the provisions and explains when, in practice, you should rely on each.
In order to rely on the print disability provisions in the Copyright Act, you must sign an agreement with Copyright Agency Limited (CAL). Under this agreement, you may be obliged to take part in “sampling surveys” of the copies you make under the licence during a particular period, if requested by CAL. Alternatively, you could make an agreement under which you keep full records of all copies you make under the licence. For further information (including how to have your organisation declared a print disability organisation for these purposes), contact CAL or go to http://www.copyright.com.au/institutions_assisting.htm.

4.2    What print disability organisations CAN do under the Copyright Act

a.    Make “master copies”

Print disability organisations can make and communicate a copy of a literary or dramatic work (but not other kinds of copyright work) in any of the following formats in order to make accessible copies for people with a print disability:
•    sound recording;
•    hard copy (including Braille and large print); and
•    electronic.

These are generally known as “master copies”. There is no requirement to check for commercial availability before making a master copy. You must mark master copies, as set out below.

Master copies of sound recordings must include the following message:

This is a sound recording made on [day on which the recording was made] in reliance on section 135ZQ of the Copyright Act 1968, solely for use in the making of a reproduction or communication under section 135ZP of that Act for a person with a print disability.

The words in italics may be omitted.

Hard copy or electronic master copies must be marked with the following information:
•    the name of the organisation for which the copy was made;
•    the date the copy was made;
•    a reference to section 135ZQ of the Copyright Act; and
•    if the master is in digital form, the warning notice (see 4.2e. “Make copies for individuals”).

The following requirements also apply:
•    within three months of making a master copy, you must notify CAL (this information is recorded in CAL’s “master catalogue”);
•    you must not allow the master copy to be used for any purpose other than assisting people with a print disability; and
•    you must not sell the master copy for a profit.

b.    Make new masters in different formats

The Copyright Act allows you to make further copies from your masters – for example, if you need a master in a different format, or using different software, or if you need digital copies of analogue masters. Each time you make such a copy, the requirements are the same as for any other master: CAL must be notified, copies must be marked, copies can only be made for the purpose of assisting people with a print disability, and copies must not be sold for a profit.

c.    Copy for other print disability organisations

If another print disability organisation has made a master, you can ask it to make a copy and communicate it to you (for example, by email). Similarly, if another organisation asks for a copy of one of your masters, you can make and communicate it to that organisation. This is subject to the following conditions:
•    the copy must be made solely for the purpose of assisting people with a print disability (by being supplied to individuals with a print disability, used as a master, or used in creating a new master);
•    the copy must not be sold for a profit; and
•    if the organisation receiving the copy makes a new master copy, it must notify CAL within three months.

Note: When you make copies in accessible formats for organisations that are not print disability organisations, such as public libraries, technically you are making copies for the individuals with a print disability who will be served by that library. Requirements when making these copies are set out at 4.2e. “Make copies for individuals”.

d.    Use the master catalogue

As a service to print disability organisations, CAL maintains a catalogue of master copies made by print disability organisations, based on the information supplied to it. Print disability organisations can check the master catalogue held by CAL before making an accessible copy, to avoid duplicating effort where an accessible-format copy has already been made.

The Copyright Act does not require you to check the catalogue before making a new master. Even if the catalogue shows that a master is available, you are not obliged to request a copy of it in preference to creating your own. However, it would obviously be poor practice not to check the catalogue and request a copy if one is available in a format that is useful to you.

If you do request a copy of a master from another organisation, you are entitled to make any changes needed in making your own master – to improve the accuracy, clarity or accessibility of the material, for example. You would then need to notify CAL of the new master you have made.

e.    Make copies for individuals

You can make copies of your masters for individuals with a print disability. You can also communicate the copies to individuals with a print disability (for example, by email, or making available on a secure server or website).
When making copies for individuals, you must:
•    check whether a copy of the material is commercially available in the format you intend to use before each copy is made (if it is, you can’t make the copy without permission); and
•    if required under your agreement with CAL, mark the copy (not required under the sampling system).

Sound recordings to be provided to clients of print disability organisations must include the following message:

This is a sound recording made on [day on which the recording was made] in reliance on section 135ZP of the Copyright Act 1968.

If you supply an accessible copy in digital form, you must:
•    ensure that the copy is not readily available except to people with a print disability; and
•    supply a warning notice with the copy.

Warning notice for supply of digital copies

The wording to use for the warning notice is:
COMMONWEALTH OF AUSTRALIA
Copyright Regulations 1969 WARNING
This material has been reproduced and communicated to you by or on behalf of [insert name of institution] pursuant to Part VB of the Copyright Act 1968 (the Act).
The material in this communication may be subject to copyright under the Act. Any further reproduction or communication of this material by you may be the subject of copyright protection under the Act.
Do not remove this notice.

Reasonable enquiries about commercial availability

Before making or communicating a copy to an individual, you must make reasonable enquiries as to whether a copy of the work is commercially available in the format you are using (Braille, large print, photographic, electronic or sound recording).
If the work is commercially available in the relevant format, the Copyright Act does not permit you to make a copy for someone with a print disability without permission, even if that person cannot access the commercially available copy (for example, because the commercially published large print edition is not in a font size large enough for that person). In this situation, you need permission from the copyright owner to make copies in the format required. However, if you can make a general agreement with the publisher along the lines of the Sample Agreement for publishers and print disability organisations, you will not need permission in each individual case.

You would not be able to rely on the new “special case” exception for people with disabilities in this situation, because it is covered by the print disability provisions.

You can check the commercial availability of an accessible copy in the ways set out in the following paragraphs.
If you want to make a hard copy (in print, or an analogue recording), you can check for commercial availability by contacting:
•    a bookshop which has access to the TitlePage availability service; or
•    a book distributor that distributes books for that publisher; or
•    the book’s publisher.

If you want to make a digital copy (for example by scanning the book or copying a digital file), you can check commercial availability of an accessible copy by:
•    searching the website of an ebook distributor that supplies that publisher’s books in digital form; or
•    contacting a distributor that distributes books in digital form for that publisher; or
•    contacting the publisher; or
•    searching the publisher’s online catalogue, if available.

Deliver accessible copies online

If you wish to make the work continually available online to your members, the easiest way to administer the system is to get permission from the publisher to check for commercial availability in the relevant formats at fixed intervals (we suggest annually). Suitable wording for a permission request is set out in the Sample Agreement for publishers and print disability organisations.
If the publisher will not grant permission to vary the requirement, the Copyright Act requires you to check for commercial availability before each download by an individual.

In either case, you must supply the “warning notice” set out above (4.2e “Make copies for individuals”).

Abridged copies

In copyright terms, an abridged version is a different literary work from the full text version. Therefore, if, for example, a book is commercially available as a sound recording but only in an abridged version, the Copyright Act would allow you to make a sound recording of the unabridged work (or a different abridged version) for people with a print disability.

f.    Where no other exceptions apply, copy for people with disabilities under the new “special case” or “flexible dealing” exception

The new “special case” exception is of limited relevance to print disability organisations, as it is not available in a situation that is covered by another exception – or would be, “assuming the conditions or requirements of that other provision were met”. A print disability organisation could not, for example, avoid the need to check for commercial availability by relying on the “special case” exception (indeed, the requirements under that exception are far more uncertain, and might arguably be more onerous, than under the print disability provisions).

A print disability organisation might, in the right circumstances, be able to rely on the “special case” exception to copy:
•    print music or artistic works in books of which accessible copies are being made (unless the organisation is also an educational institution, in which case it would need to rely on the educational provisions); or
•    a video or DVD with  added commentary describing the visuals.

For guidelines on this exception, go to 3.1c Where no other exception applies: “special case” exception for people with a disability.

4.3    What print disability organisations CAN’T do under the Copyright Act

a.    No copying if the work is commercially available in that format

As noted earlier, the Copyright Act does not allow you to make copies in a particular format if the work is commercially available in that format (even if the available version is not suitable for a particular person with a print disability – see 4.2e. Make copies for individuals). However, you may be able to make an agreement with the publisher that allows you to do so (see the Sample Agreement for publishers and print disability organisations).

It sometimes happens that after a print disability organisation has made an accessible master copy, the work becomes commercially available in the same format. In this situation, the organisation is not required to destroy the master copy. However, if you wish to continue making copies for individuals with a print disability when the work is commercially available in the same format, you will need to contact the copyright owner for permission. If, at some later date, the work is no longer commercially available in that format, the organisation could begin making copies for individuals again from the master it had kept.

b.    Things that can’t be copied

The following cannot be copied or communicated under the print disability provisions of the Copyright Act:
•    music;
•    artistic works (including graphs or diagrams); and
•    audiovisual material (such as films, videos, recorded music, TV and radio programs).

However, if your organisation is also an educational institution, you can copy such material for your students, within certain limits and provided you meet certain requirements (see Part 5).
If your organisation is not an educational institution, you may be able to copy such material under the new “special case” exception, in the right circumstances. For further information, go to 3.1c Where no other exception applies: “special case” exception for people with a disability.

Alternatively, you may need to contact the copyright owner(s) for permission. However, note that publishers can’t necessarily grant permission for third party material included in their books.