Copyright (Visually Impaired Persons) Act 2002 comes into force
New copyright freedoms - new copyright responsibilities
We are delighted that the Copyright (Visually Impaired Persons) Act 2002 finally came into force on 31 October 2003. This removes one of the barriers to equal access to information for people with sight loss.
We have prepared some notes to help you understand the Act, the freedoms it brings and the responsibilities which we all have under it. Please note that these notes do not purport to be an official interpretation of the law.
Read the Copyright (Visually Impaired Persons) Act 2002 in full.
What is copyright?
Copyright has two strands: economic and moral. The creator of material (written, musical, visual) is entitled to control who does what with their creation, so that they can obtain a fair return for their labour. They are also entitled to ensure that the creation is not distorted or passed off as the work of another.
It does not have to be registered. It exists automatically. The author (creator) may assign copyright to another party, such as a publisher. Several different parties may have copyright in a given product, eg one for the text, one for the illustrations, one for the typographical layout.
What did the law say previously?
Generally speaking, under the Copyright, Designs and Patents Act 1988 rights holders have to give their permission before their work can be published, copied, translated, performed, or otherwise "exploited".
This has, until 31 October 2003, applied equally to the creation of "accessible" copies required by a person with a visual impairment as much as to anything else.
The law did contain some exceptions for areas of activity such as education and public libraries, but nothing for people with a disability.
To make even one accessible copy without prior permission was illegal.
How has this changed?
The Copyright (Visually Impaired Persons) Act 2002, which came into force on 31 October, 2003, amends the Copyright Designs and Patents Act 1988. Its purpose was to remove the key difficulty experienced by those of us seeking to make information accessible - the need to seek prior permission and the resulting delay - whilst preserving the legitimate rights of authors and others. Thus the Act introduces exceptions to copyright law which, in general terms, remove the need for anyone to obtain permission from the rights holder to produce an "accessible copy".
It does not, however, create a total free for all!
Who is covered by the new law?
One strength of the new law is its functional definition of visual impairment.
"A visually impaired person" is defined broadly, as a person
- who is blind;
- who has an impairment of visual function which cannot be improved, by the use of corrective lenses, to a level that would normally be acceptable for reading without a special level or kind of light;
- who is unable, through physical disability, to hold or manipulate a book; or
- who is unable, through physical disability, to focus or move his eyes to the extent that would normally be acceptable for reading.
Thus it goes beyond "blind and partially sighted" people, as commonly understood, but does not encompass people with perceptual or cognitive disabilities, such as dyslexia. Nor those with hearing impairments.
NB: This definition, differing from that used by Articles for the Blind and many organisation's eligibility criteria, does not in any way affect any other definition.
What is an accessible copy?
Another strength of the Act is that it focuses on accessibility rather than specific formats.
- "An accessible copy" is defined as:
- "a version which provides for a visually impaired person improved access to the work."
- "An accessible copy may include facilities for navigating around the version of the copyright work…", so it covers hard and soft copies - ie, braille, audio, e-text, large print etc.
What is covered by the Act?
"Any literary, dramatic, artistic or musical work" not accessible to a visually impaired person in its original form.
"Musical" refers to sheet music, not to performed or recorded music.
The term "literary" does not imply any literary merit. It simply means textual. Databases are excluded.
Who can do what?
There are two parts to the new Act:
- one-for-one copies
- multiple copies.
If you are visually impaired, you can make, or ask anyone to make for you, a single accessible copy of anything of which you have "lawful possession" or "lawful use".
This can cover anything that you have bought, been given or lent, or that is held in a library that you are eligible to use.
It covers material published commercially but also other material made public, such as dissertations lodged in a library. Once you have got your accessible copy, you can pass it to others who qualify as "visually impaired", to the same extent that you would be able to do with the print copy, as long as you pass the print copy with it.
Equally, you can pass original and accessible version back to a librarian or teacher, who could later issue them to another eligible person. The governing principle is that the original print copy remains with any accessible versions, so that only one person can "read" the work at any one time, as with print.
Obligations and limitations with "one-for-one" copying
- The right does not apply if an equivalent accessible copy is already available commercially.
- The accessible copy must carry "sufficient acknowledgement" of its source, such as title, author, and edition.
- It must carry wording to indicate that it has been created under the terms of Section 31A of the Copyright, Designs and Patents Act 1988 as amended by the Copyright (Visually Impaired Persons) Act 2002.
Multiple (two or more) accessible copies can be made by any not-for-profit body and any educational establishment. The Act refers to these as "approved bodies", but no approval process is required.
Generally, files for producing accessible copies, known as intermediate copies, can be transferred between one approved body and another. However, an educational establishment has, under the Act, to ensure that copies will only be used for its own educational purposes. Licensing schemes (see below) can overcome this limitation.
The right covers any "commercially published" item of which the approved body has "lawful possession". Thus they may have bought or borrowed the original. (Note that under this multiple copy exception, the original has to be published commercially, whereas for the personal use exception, the original has only to be "a work" or "published").
Obligations and limitations relating to multiple copies
NB - This section should be read in conjunction with that on licensing schemes below.
- As with personal copies, the right does not apply if an equivalent accessible copy is already available commercially; and the accessible copy must carry "sufficient acknowledgement" of its source,, such as title, author, and edition.
- It must carry wording to indicate that it has been created under the terms of Section 31B of the Copyright, Designs and Patents Act, 1988, as amended by the Copyright (Visually Impaired Persons) Act 2002. The rights holder must still be notified retrospectively that the accessible copies have been produced and distributed.
- Records must be kept of titles and formats produced, and of the approved body's customers. These records must be available for inspection by the copyright owner on request.
The Act allows for licensing schemes, drawn up by rights holder groups. Such schemes may enhance the Act's provisions in respect of the production of multiple copies, but cannot detract from the basic rights conferred in the Act.
If a licensing scheme exists covering the type of material or the formats involved, a licence must be taken out and its terms must be complied with.
As the Act comes into force, two licensing schemes have been notified, one under the auspices of the Copyright Licensing Agency and one under those of the Music Publishers Association
Any organisation wishing to embark on the production of multiple accessible copies will be obliged to take out a licence under the relevant scheme (or possibly both).
Generally speaking, these schemes extend or simplify the exceptions conferred by the Act. For example, instead of notifying each individual rights holder, there is only a requirement to notify REVEAL in the case of the CLA licence, or MPA in the case of theirs.
Organisations such as schools, colleges and libraries who already hold CLA licenses and who only distribute copies to their own students will be able to have an extension to their existing license. Schemes, once notified to the Secretary of State, are in force until or unless deemed in the courts to be "unreasonable".
If you are a well-known producer or already a CLA licence holder, CLA is likely to get in touch with you shortly, but we recommend that if you produce multiple accessible copies of commercially published material, you contact their Customer Services:
Copyright Licensing Agency
90 Tottenham Court Road
Tel: 020 7436 5931
Fax: 020 7436 3986
If you produce multiple accessible copies of sheet music you should contact the Music Publishers Association, 3rd Floor, Strandgate, 18/20 York Buildings, London WC2N 6JU. Tel: 020 7839 7779. Fax: 020 7839 7776. Email: email@example.com
Frequently asked questions
When did the Act come into force?
31 October 2003. Licences will be backdated to that date.
What is not covered by the Act?
Although the Act frees us from the yoke of permission, it does not oblige publishers or authors to assist us positively. Nor does it itself address the problem of barriers thrown up by digital forms of copy protection.