Introduction

This section of the Toolkit provides guidance to university libraries on the interpretation of the Canadian Copyright Act (R.S.C., 1985, c. C-42) as it relates to the provision of accessible content under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). It is intended to address common copyright questions that are likely to arise as institutions work to comply with the requirements of the AODA. Links to relevant legislation as well as supplementary resource materials are also included.

It is important to note that this section is an interpretation of the legislation (Copyright Act and AODA) and does not constitute legal advice. Rather than providing definitive answers, this section provides guidance on best practices, based on consultation with legal and accessibility experts in the OCUL community. It is advisable to consult with local expertise wherever possible.

Does the Canadian Copyright Act allow libraries to make copies for individuals with perceptual disabilities?

The Canadian Copyright Act, Section 32(1), permits alternate format copies to be made for individuals with perceptual disabilities, of literary, dramatic, artistic and musical works, but not cinematographic works (for instance, motion pictures, films and videos).

The alternate format copies may be made either by the individual with the perceptual disability, or by someone acting at the request of the individual. The Act also permits alternate format copies to be made by a non-profit organization acting for the benefit of such an individual. University libraries and their staff may therefore make copies for individuals with perceptual disabilities, provided the conditions set out in Section 32 of the Act are followed.

Some limitations apply to the types of materials that can be copied, and the format of the copies that can be made.

What kinds of alternate format copies may be made under the Copyright Act?

Section 32(1) permits making the copy or sound recording in a format specially designed for a person with a perceptual disability, and includes the translation, adaptation, or reproduction in sign language of a work (not including a cinematographic work). This exception does not extend to the making of large-print format books.

The exception in 32(1) does not apply where the work or sound recording to be copied is commercially available in a format specially designed to meet the needs of the individual with the perceptual disability for whom the copy is being made. Commercially available, as it applies to this exception, means available on the Canadian market within a reasonable time and for a reasonable price and able to be located with reasonable effort. The Act does not define “reasonable”, and interpretation of this term may vary by institution.

What types of works may be copied on behalf of individuals with perceptual disabilities?

Section 32(1) permits copies to be made of literary, musical, artistic, or dramatic works, but not cinematographic works (for instance, motion pictures, films and videos).

How can libraries make videos and films accessible to individuals with perceptual disabilities, when the Copyright Act specifically excludes cinematographic works from this exception?

Generally, it will be necessary to seek permission from the copyright owner of the work in order to make an alternate format copy (for instance, captioned) of an entire video or film. In some cases the copyright owner may be able to provide a captioned copy of a film or video.

It may also be possible in some cases to make alternate format copies of short excerpts of cinematographic works under the fair dealing exception in the Copyright Act Section 29, which permits copies to be made for the purpose of education, research, criticism, review, news reporting, satire and parody, provided the copies being made are fair.

There is no definition of “fair” in the Copyright Act, but the Supreme Court of Canada has provided some guidance on how to assess whether copying may be considered fair dealing. For more information, see CCH Canadian Ltd. vs. Law Society of Upper Canada, Sections53-60. Your university or library may also have its own fair dealing guidelines that can be consulted.

For more information about accessible audio-visual resources please refer to the Audio- visual materials section of the Toolkit.

How is “perceptual disability” defined in the Copyright Act?

The Copyright Act defines "perceptual disability" as a disability that prevents or inhibits the individual from accessing the print material due to a visual impairment, a physical disability, or a comprehension disability. For the specific language, refer to Section 32(1) in the Canadian Copyright Act.

What are Technological Protection Measures (TPMs) and how do they affect copies made for individuals with perceptual disabilities?

A technical protection measure (TPM) is the formal term used in Canadian copyright legislation for a digital lock. A TPM is a software device aimed at ensuring authorized uses of a work, either by controlling access to the work or by controlling uses of the work, such as copying, distribution or performance. The Copyright Act prohibits the circumvention of TPMs, unless the circumvention is done with the permission of the copyright holder. This means that, even if a work can be copied under an exception in the Copyright Act like fair dealing, you cannot circumvent the digital lock to access the work without the permission of the copyright holder (see Copyright Act, Section 41).

TPMs can cause a variety of problems for individuals with perceptual disabilities as they are often associated with platforms or software (For example, for ebooks) that may limit the use of screen reading software, make obtaining a large print copy difficult, or limit the ability to download and modify content.

There are a few limited exceptions that apply to Section 41, including one for people with perceptual disabilities (Section 41.16):

1. Paragraph 41.1(1) (a) does not apply to a person with a perceptual disability, another person acting at their request or a non-profitorganization acting for their benefit if that person or organization circumvents a technological protection measure for the sole purpose of making a work, a performer’s performance fixed in a sound recording or a sound recording perceptible to the person with a perceptual disability.
2. Paragraphs 41.1(1) (b) and (c) do not apply to a person who offers or provides services to persons or organizations referred to in subsection (1), or manufactures, imports or provides a technology, device or component, for the purposes of enabling those persons or organizations to circumvent a technological protection measure in accordance with that subsection, to the extent that the services, technology, device or component do not unduly impair the technological protection measure.

While this section does (in theory) permit libraries to circumvent a TPM for a person with a perceptual disability, it is only “to the extent that the services, technology, device or component do not unduly impair the technological protection measure.” This language has been criticized by groups representing the visually impaired (see Michael Geist: The Daily Digital Lock Dissenter – particularly the entries representing the Provincial Resource Centre for the Visually Impaired, and the Canadian National Institute for the Blind (CNIB).

How does the Copyright Act relate to the AODA? Which Act takes precedence?

There has been some confusion around meeting both the requirements of the AODA and the Copyright Act. The AODA does not provide you with the right to copy – it just states that you need to be able to provide an accessible format upon request. This means that the AODA cannot be used as an excuse to break copyright law. In addition, if there was an actual conflict between the two laws, the doctrine of paramountcy establishes that “when federal and provincial laws cover the same or similar subject matters, and there is a conflict between those laws, the central law is operative and the provincial law (to the extent of the conflict) is rendered inoperative.”

For more details see Doctrine of Paramountcy published by the University of Alberta Centre for Constitutional Studies.