Copyright Act - changes for Disability Services in 2018

This information sheet covers changes to the disability access provisions in the Copyright Act 1968 (Act) that came into effect on 22 December 2017. This has given FedUni more flexibility when assisting students with a disability.

Why did the Act change?

Disability access provisions have been simplified to ensure more equitable access to copyright material. The previous provisions in Part VB of the Act have been replaced by two free exceptions: use of copyright material by organisations assisting persons with a disability (s.113F) and fair dealing for the purpose of access by persons with a disability (s.113E).

What can be done with copyright material?

The provisions are designed to be flexible to ensure copyright material can be converted into the most accessible format(s) available and with appropriate features.

A person can make any changes to the format and add features to help a person use the material. For example, scanning a book for use with assistive technology, making adjustments to the size and colour of graphs, tables or text, converting books into easy English, and providing audio descriptions.

Who is a person with a disability?

A person with a disability is anyone who suffers from a disability that causes them difficulty in reading, viewing, hearing or comprehending copyright material in a particular form. In practice, this includes anyone with a disability as defined in the Disability Discrimination Act 1992.

Use of copyright material by organisations assisting persons with a disability s.113F

This exception allows organisations to make accessible format copies for the sole purpose of assisting a person with a disability if the material is not commercially available in the format required. This replaces the previous provisions in the statutory licence (Part VB of the Act).

What organisations are covered?

The exception covers educational institutions, such as universities, schools and TAFEs.

When is material commercially available?

Copyright material is commercially available if it can be obtained within a reasonable time at an ordinary commercial price. This requires making a reasonable search of authoritative sources.

Organisations are required to purchase an accessible copy if it is commercially available in a format suitable for assisting the person with their disability.

Fair dealing for the purpose of access by persons with a disability s.113E

Under the new provision, a person with a disability, or a person acting on their behalf, can make a copy or upload/download a copy of copyright material if it is for the

purpose of providing an accessible version to a person with a disability and the dealing is fair.

When is the dealing fair?

The dealing must be “fair” to avoid infringing copyright in the material. The new provision sets four factors that must be balanced against the owner’s right to exploit their material:

(i) The purpose and character of the dealing: This will be satisfied if the use is to assist a person with a disability to enjoy the copyright material.

(ii) The nature of the copyright material: Consider whether the material is in print and available and whether it is published or unpublished.

(iii) The effect of the dealing upon the potential market for, or value of, the material: Does the proposed use unreasonably interfere with the copyright owner’s exploitation of the material? If it does, the market harm it causes must be substantial for it to be considered unfair.

If the material is commercially available, the other factors become more important in assessing fairness.

(iv) The amount and substantiality of the part taken compared to the whole material (if only part of the material has been copied): Consider how much of the original material has been taken. The more that is taken the more likely it is to be unfair. However, a copy of the whole copyright material may be required by the person where the material is not available in the format required or with the necessary accessibility features.

Can an access control technological protection measure (TPM) be circumvented to make the copies?

Following changes to the Copyright Regulations that also came into effect on 22 December 2017, universities can now circumvent a TPM if necessary to utilise either of the two new disability copying exceptions, ss. 113F or 113E.

How will this affect FedUni?

This will allow FedUni to deal more flexibly with students that have any form of disability. Staff must investigate the commercial availability of material in the format required for the student before making a copy under s.113F. In some situations, staff can rely on s.113E if the proposed use is fair.

Who do I contact for more information?

For more information about the provisions, see the Australian Copyright Council’s information sheet Disabilities: Copyright Provisions available from http://bit.ly/2FxaAJo.

If you have any questions, please contact the Copyright Office at copyright@federation.edu.au.

The material in this information sheet created by staff of the University of Sydney and edited by staff at Swinburne University of Technology is made available for use under a CC0 Creative Commons waiver and fallback licence (CC0 1.0). No attribution is required.

February 2018