Joe Clark: Accessibility | Design | Writing

Comments submitted to copyright consultation

The following is my submission to Canada’s copyright consultation (2009). My topic of interest is accessibility for people with disabilities.


I am a journalist and author in Toronto. I’ve written two books and about 400 articles for newspapers and magazines. I’ve been online since 1991. I have been interested in, and have worked in, the field of accessibility for people with disabilities over a period of 30 years. I have good copyright knowledge for a layperson.

Location of this submission

This submission, dated 2009.09.11, is permanently filed online at


For the purposes of this submission, I use the following definitions:

Recording of a human reading of a printed work, sold commercially in common formats like CD with an intended audience of nondisabled people
talking book
Recording of a human reading of a printed work, recorded in a specialized format and distributed largely or exclusively to people with disabilities


The Copyright Act’s restrictions on the creation of alternate format essentially create a perpetual monopoly for a dysfunctional and widely despised charity, the CNIB; limit print-disabled people to outdated formats; impede the market economy; and essentially ban widespread activities like captioning and audio description.

Centralization of production robs people with disabilities of market choice

The Copyright Act, at §32, states that only “non-profit organization[s]” may make alternate-format copies of works.

If an authorized producer works too slowly or just ignores a request, the print-disabled reader has to wait unconscionably longer than a nondisabled person to read a work – or never gets that work in an accessible format at all.

Such centralization discriminates against people with disabilities solely on the basis of their disability. Nondisabled rightsholders may use any vendor they wish to duplicate their works. People with certain disabilities, who also hold rights (though a different set), are legally prevented from exercising their own market choice. Those readers may solely rely on what amounts to a government-approved whitelist of acceptable (“non-profit”) organizations.

If we view the producers of alternate-format works as operators of printing presses, then, as far as print-disabled people are concerned, the government regulates their printing presses. The same regulations do not apply to nondisabled people.

While discrimination of this sort seems illegal on its face and is ethically untenable in any event, the solution is straightforward: Remove the constraints on who exactly may create an alternate format. Don’t even mention any kind of constraint; nondisabled people are never faced with the same kind of checklist. In this way, vendors can compete for business (and can compete on the values of accuracy and completeness of conversion) and print-disabled people can exercise their free-market rights to engage whatever vendor or provider they wish – including nonprofits.

Copyright law should not prop up an obsolete charity model

Many intervenors will have made the claim that copyright does not exist to perpetuate yesterday’s technologies. Nor does it exist to keep old industries afloat or to protect existing business models. Those intervenors will have cautioned against carving out exemptions that, say, favour the music or movie industries, or any incumbent corporate copyright holder.

But as it stands now, the accessibility provisions of the Copyright Act prop up an outdated charity model. By legally preventing creators of alternate formats from earning a profit, it deters those creators from the market, to the extent it is a market in the first place. Canadian copyright law confers a de facto monopoly on the CNIB, which would like nothing better than for that monopoly to be retained.

The prevailing ethos seems to be that alternate-format production is something we might possibly get around to after we’ve finished producing a “real” book. But blind people aren’t the intended audience for books. (We didn’t get into this business to sell to blind people.) Alternate formats end up being forgotten altogether in most cases. But when we do manage to think of them, decades of cultural myths about the frailty and tragedy of blindness lead us to believe it make sense for a charity to single-handedly take care of downtrodden blind people. Who could possibly object to a charity like CNIB’s efforts to help the unfortunate?

Well, a lot of people, as it turns out. CNIB’s model of centralized and absolute decision-making robs blind people of active control of their lives. And when it comes to alternate-format production it’s backed up by the force of law.

It’s true that publishers and copyright holders cannot prevent the creation of an alternate format. But they aren’t the bottleneck; CNIB is. It is CNIB that has sole effective control over what works are converted to alternate formats in Canada. Nondisabled people don’t have to settle for that; the idea that persons with disabilities must subjugate their own reading choices to a third party is constitutionally untenable. But it makes a great deal of sense culturally: Canadian myth, aided and abetted by the beneficiary of that myth, holds that blind people are incapable of making their own choices and need somebody else to do it for them. We make ourselves feel better about this kind of caste system by assuring ourselves that if charities or “non-profit organizations” handle the topic, everything will turn out well.

Except it hasn’t. The fact that Canadians may hold vaguely warm-and-fuzzy feelings about the CNIB is not enough of a reason to hand that organization a monopoly.

While there are many complaints (some emanating from CNIB) about how few alternate formats are actually available, nobody ever manages to pin the blame for such scarcity where it belongs – the limitations of the Copyright Act and the paternalistic attitudes of the CNIB monopoly. You’ll note that CNIB’s submissions on this topic never call for the removal of the requirement to use non-profit organizations to convert inaccessible books. Of course not: CNIB has a monopoly business it wants to protect, and it does that with all the fervour of any monopolist.

The free market has already established that nonliterary works, including highly confidential bank and credit-card statements, can be readily converted to alternate formats by for-profit vendors. They can do the same thing for “a literary, musical, artistic or dramatic work,” to use the Copyright Act’s existing list of genres. Opening up the creation of alternate formats to anyone, or any organization, or any corporation that wishes to create them will shatter the CNIB monopoly and will surely result in more books read by more people.

Centralization of production limits the number of available works

When only a few organizations are legally entitled to produce an alternate format, I see only four outcomes:

  1. Organizations produce an alternate-format work speedily and without incident.
  2. Organizations say they’ll produce an alternate format but don’t.
  3. Organizations refuse a request, often for specious reasons (e.g., insisting you buy the book before they’ll convert it).
  4. Organizations become so backlogged that the alternate format may arrive too late to be useful.

(A fifth outcome mixes and matches from the above list: Organizations produce alternate formats after the printed work is released but with only enough of a delay to be annoying rather than fatal. This could account for the plurality of cases. Certainly it is rare to find an alternate format and a print book released on the same day on equivalent terms.)

My own experience speaks to this problem. My first book, Building Accessible Websites (New Riders), on the topic of Web accessibility, came out in print in 2002. I am the copyright holder and I had retained alternate-format rights. (I now own all rights.)

A CD-ROM bound into the book contained full text, but no images, in standards-compliant XHTML. The book’s companion Web site provided the same full-text XHTML, with added images for one chapter. Nonetheless, I wanted an alternate format produced for readers who preferred a narrated or Braille version.

Recordings for the Blind & Dyslexic barely answered E-mails and phone calls, frittered away weeks doing nothing, and, in an ultimate indignity, actually sent an E-mail near the end of the process asking me to recap the whole project from scratch. (Paraphrase: “Remind me what this is about again?”) My direct experience shows RFB&D to be scattered and unable to handle my business.

A distant second choice was CNIB, which wishes to completely dominate the market for goods and services aimed at blind people. I had no interest in engaging CNIB, but, because of the Canada’s Copyright Act, my hands were effectively tied. Over a period of about two years (an eternity in computer-book publishing):

Ultimately, CNIB could not get its act together to narrate one book into audio format and convert a couple of dozen files to DAISY. CNIB never managed to produce my alternate-format book.

The real-world effect is small. Few blind or otherwise print-disabled people are Web developers. Fewer still would be unable to read the XHTML version. The audiobook version was to be provided for completeness. But because my hands were legally tied and I had no practical choice but to work with a known-incompetent organization I disliked anyway, I had to entrust my work to CNIB, which failed completely in the exercise of its government-granted near-monopoly.

Format restrictions limit the number of available works

Print publishers have never actually intended to provide alternate-format works. The sole profitable market segment there, large-print works, has been reserved for publishers’ exclusive use. (That market segment is made up largely of seniors who don’t consider themselves disabled – let alone print-disabled, a term they’ve never heard. The market includes few people with a lifelong disability or people who otherwise self-identify as blind or disabled.)

Nonetheless, publishers disingenuously acted as though alternate formats were viable market substitutes for print works. They acted like alternate formats were a vector for what they would now call “piracy.” They acted like they were about to lose sales of books that print-disabled people, by definition, could not read. Publishers acted as though alternate formats were attractive product choices for nondisabled people and represented lost sales of print books.

By any standard, this is a scam, but it was made much worse by copyright law, which required that alternate formats other than large print be sequestered to a disability ghetto.

Publishers pretended to jealously guard their copyrights even though such copyrights actually belong to authors in many cases, not publishers. They guarded such copyrights as though they were ever going to provide alternate formats themselves. The accepted fact of the matter is that almost no publishers produce alternate formats. Publishers hoarded a right they never, at any time, intended to exercise en masse.

Parliament was complicit in perpetuating the falsehoods that alternate formats are a form of theft, or displaced sales, of “real” books and that disabled people were somehow so dangerous and contagious that their books had to be walled off in formats normal people couldn’t read. While the contradictions are many, the scandal is the fact that these contradictions were enshrined law.

Technology has now given lie not only to publishers’ attitudes but to the law itself. It’s true that specialized talking books for the blind, including DAISY, are better than commercial CD and downloadable audio books for sighted people. Talking books have chapter and page stops, they audio-describe charts, photos, and graphs, and they are set up for high-speed listening. They’re clearly better. But they aren’t so much better that real-world blind people insist on using only those.

Just as MP3s tend to sound worse than CDs (which sound worse than some LPs), people embraced CD- and MP3-quality audio as good enough. Online video of the YouTube variety is often atrocious compared to analogue broadcast television and isn’t even in the same ballpark as HD, DVD, and Blu-ray, but – again – people accepted online video as good enough.

In the same way, blind and other disabled people who want to listen to books instead of reading them have accepted audiobooks as good enough. But it’s illegal to create an audiobook as a claimed alternate format. That’s got to change.

In the 21st century, format restrictions have been superseded by events and were never a good idea in the first place. A rationally developed copyright régime, as distinct from one that takes orders from the publishing industry, would accept that it is up to the reader to choose an alternate format. Among other things, this means that publishers’ monopoly on creation of large print has to be abolished, too. These changes would “foster competition and investment in Canada.”

To accommodate publishers’ and creators’ rights to control duplication, it would still be useful to allow them to produce or commercially release their own alternate formats first. If, after a reasonable time explicitly specified in law, publishers do not provide the alternate format themselves, other parties may do so. Such a provision corrects for market failure: If publishers and creators don’t produce an alternate format themselves, other parties will fill the gap.

It isn’t true that “less than 5%” of written materials are accessible to people with print disabilities

I have lost count of how many times I have heard or read the claim that “less than 5%” of printed works are available in alternate formats. Losing count is in fact central to this discussion. It is impossible to count the number of printed works in the world. Any such count will omit out-of-print works, works in minority languages, and an incalculable number of electronic documents, to name but three. We don’t know how many documents – including books, talking books, and Braille books – are in existence. It follows, then, that we don’t know how many of those are or are not accessible.

It is debatable on a good day that “less than 5%” of printed works are accessible because so much material is available on Web sites now, including entire books. Even poorly-coded Web sites can be functionally accessible to blind people using good browsers and screen readers, for example.

“5%” sounds like a nice round number, also a deplorable and pathetic one. Quoting that figure amounts to making an emotional argument in the guise of an objective one: “Shouldn’t Canadians be ashamed that not even 5% of books are accessible to disabled people?” Anyone who offers that figure is doing so without the benefit of objective data, which doesn’t exist in the first place.

Sign-language translations

The Copyright Act allows for the translation into sign language of literary works. (Cinematographic works cannot be transformed that way.) Sign-language translation is qualitatively different from transliteration into another written form and from reading out loud. It is actually a translation into another language, and creators ordinarily hold complete power to approve or reject translations.

Such a provision removes that power in one limited instance. That may be justifiable to accommodate people with print or reading disabilities, but we need to be honest about the abridgement of another right that it represents.

Captioning and audio description

The Copyright Act makes it legal to convert a work, “other than a cinematographic work,” to a format accessible to disabled people. Accessibility has a limited and narrow sense here that was superseded by the invention of cinema, let alone the invention of other technologies. It’s actually illegal to make a film or video accessible. Hence §32 was outdated the day Parliament passed it into law, and things have only gotten worse since then.

Setting aside for a moment the requirement to use disabled-specific formats, the Copyright Act makes it technically illegal to add captioning (for deaf people) or audio description (for blind people) to any film or video. The Act makes it illegal three ways:

  1. Captions and descriptions are derivative works, usually added without advance permission.
  2. They are added to cinematographic works. (§32 excludes such works from the list of noninfringing activities.)
  3. They fail to use formats exclusively limited to people with disabilities (captions are just writing; descriptions are just speech).

Of course many copyright holders authorize the creation of captioning and description. But you can’t watch TV for an hour without running across a program captioned by a broadcaster or an outside captioning house and/or described by an outside description house. I guarantee you these broadcasters did not secure advance permission for the creation of these derivative works in all or even most cases. (It may be buried in the fine print of a broadcasting rights contract.)

Now, in practice nobody really cares, but that isn’t going to last forever. I would anticipate trouble in the future on the basis of another feature of the Copyright Act, moral rights. I can easily imagine copyright holders, especially film producers, screenwriters, and directors, lodging objections to the unauthorized transcription and editing of dialogue in the form of captioning, and the unauthorized addition of narration they did not write in the form of audio description.

Remedies sought

  1. Remove all the existing fine-print limitations of §32.

    1. Copies could be made of any copyrighted work, not just “a literary, musical, artistic or dramatic work.” Cinematographic works would no longer be excluded.
    2. Format would be left unspecified and not limited to “a format specially designed for persons with a perceptual disability.”
    3. Anyone or any organization might create an alternate format. Moreover, there is no need to wait for a “request.”
    4. Remove the limitation that “the making of a large print book” is restricted to the actual copyright holder.
    5. The addition of captioning, audio description, or both to any work would not be an infringement.
      • Do not limit the genres to which those may be added. Especially do not limit genre to cinematographic works; some existing genres, like screencasts, podcasts, and recorded museum tours, already require captioning or description but are not “cinematographic works.” Interpretation of images, photographs, and charts and graphs in a talking book is equivalent to audio description, yet works from a printed source.
      • Explicitly state that nothing in this section authorizes the creation of a subtitled or dubbed version of any work, save for a sign-language interpretation.
  2. Define the period in which a copyright holder may create a “commercially available” alternate format, after which anyone or any organization may do so.

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Posted: 2009.09.11

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