Vincent Doré is a JD/MBA Candidate at Osgoode Hall Law School and Schulich School of Business.

Bill C-32, Canada’s attempt at updating the Copyright Act, has received much attention in the digital space. The blogosphere is filled with commentary on all things copyright, and filtering out the noise is a challenge in itself. Predictably, much of the commentary has carried a negative tone (see, for example, this analysis on point); however, Canada has taken an all-important first step in proposing updates to its copyright legislation to meet present and future needs, rather than taking the “wait-and-see” approach. One area that received overdue attention in Bill C-32: access to copyrighted material for the print-disabled, or visually impaired.

In response to domestic pressures and ongoing global debates, Canada has proposed amendments to the Copyright Act to include a new provision (section 32.01) providing an exception to copyright infringement for non-profit organizations creating copies of copyrighted material in a format specially designed for the print-disabled, such as Braille. The provision allows the NGOs to send the copies to similar organizations in other countries, which is particularly relevant given that 87% of the world’s 314 million print-disabled people live in developing countries.

In May 2009, Brazil, Paraguay, and Ecuador presented to the World Intellectual Property Organization’s (WIPO) Standing Committee on Copyright and Related Rights (SCCR) a proposal of a draft treaty to spearhead international discussions on access to copyrighted material for the print-disabled. No decision has yet been made on the treaty, however it did receive significant support from developing countries including Mexico, Argentina, the Dominican Republic, Guatemala, Honduras, Trinidad and Tobago, Uruguay and Venezuela, as well as NGOs such as Knowledge Ecology International (KEI). This kind of treaty would be legally-binding, a characteristic that some other delegations have disapproved of (for a discussion on the 2009 meeting and the treaty, see this IPilogue blog post from last June).

During open-ended consultations in May 2010, the United States presented a draft proposal for a “Consensus Instrument.” From the U.S. perspective, this type of non-binding agreement would be preferred over a binding one because it gives each delegation more flexibility in its regulatory approach. Section 32.01 would work in harmony with this instrument. Although a “Consensus Instrument” appears to adequately deal with the issues, non-binding agreements inherently imply a number of adherence and accountability concerns, and the motives of the U.S. in arguing against the draft treaty have also been questioned. The Americans argue that the needs of the print-disabled peoples of the world are already being met, but this argument is particularly unconvincing. “95% of books are never published in any format other than standard print,” said World Blind Union (WBU) President, Dr. William Rowland in 2008.

Brazil has already spoken out against the U.S. proposal, stating that it does not go far enough, and that the only way to truly address the best interests of the print-disabled is by enacting the treaty, which was co-drafted by the WBU and KEI.

Earlier, Canada had stated its position on general principles that should be followed in any attempt to improve access for the print-disabled:

[The Delegation of Canada] believed that any solution to the problems of access by visually impaired persons to copyright works should allow for a variety of means for domestic production of accessible material including for example exceptions, compulsory licensing or conditional exceptions.  There might also be different types of limitations and exceptions for different type of accessible material, even in one country.  Having different types of limitations and exceptions in different countries or for different types of accessible material should not prevent the international exchange of such materials. (from the SCCR/18 meeting report, found here at para. 172)

Bill C-32 demonstrates Canada’s commitment to this vision of equal access to literature for the world’s print-disabled, and users’ rights more generally. By creating a narrow exception to infringement, the proposed amendments also accounted for the concerns of the creative community by protecting copyright owners’ interests, even in the face of a global ethical dilemma. For example, subsection 32.01 (2) of the proposed Act provides a limitation on the exception by excluding large print books from the allowable “specially designed” formats. In the spirit of Canadian fair trade legislation, the copy is precluded from competing with the market of the original work without infringement.

Through the exception in section 32.01 of the proposed Act, Canada hopes to address the concerns of NGOs, who have been the most vocal supporters of this cause, by allowing them to deliver literature to their primary stakeholders without facing prohibitive copyright clearance costs. However, while Bill C-32 may help to address the concerns of the NGOs, it does leave one stone unturned: Is there no role for the private sector? With a legal framework in place, could private entities help deliver literature to those who have been neglected by publishers for so long? Would private sector involvement also quell the concerns of the U.S.?

At the moment, there is too much uncertainty in the area, particularly concerning international regulation, for the private sector to enter the market. June 24^th may provide some answers. During the week of June 21^st, 2010, the SCCR will hold its next meeting, and the debate over what form of document should govern this international issue will continue. The U.S. will no doubt try to further its arguments while developing nations will insist that the 184 WIPO member nations enact a binding treaty. Which method Canada will favour remains to be seen; however, Canada’s willingness to take action on a truly human and truly global issue is laudable.

This type of proactivity on the international stage is not Canada’s strong suit and Bill C-32 may be far from perfect, but let us find solace in the fact that something has been done. While discussions on access for the visually impaired have persisted for nearly two decades, Canada has taken a stand and used Bill C-32 as an opportunity to address a gap in the Copyright Act.

To follow the discussions on other key issues arising from Bill C-32, see the many contributions of IPilogue editors from the past week (and watch for more posts next week).

Posted in Copyright, copyright reform, Literary Works