RECOMMENDATIONS

Recommendation 1 The Australian Government should take legislative action to implement Article 30 (3) of the United Nations Convention on the Rights of Persons with Disabilities 2006, which provides that ‘States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials’. This will involve revising the Copyright Act 1968 (Cth) – and addressing any direct or indirect disability discrimination.

Recommendation 2 The Australian Law Reform Commission should consider revising the Copyright Act 1968 (Cth) to remove all direct and indirect discriminatory barriers to access by persons with disabilities to cultural materials.

Recommendation 3 The Australian Law Reform Commission should recommend that the Copyright Act 1968 (Cth) be revised to take a broad and inclusive definition of ‘disability’ based on the Disability Discrimination Act 1992 (Cth).

Recommendation 4 The Australian Law Reform Commission should replace existing copyright exceptions for those disabilities – such as section 200AB - with a broad, technology-neutral and flexible defence under the Copyright Act 1968 (Cth) to provide access to copyright materials for those with disabilities.

Recommendation 5 The Australian Law Reform Commission should also provide that such a defence is available to carers, assistants, and institutions involved with helping those with disabilities – such as libraries, educational institutions, and disability institutions.

Recommendation 6 The Australian Law Reform Commission should take notice of the recent ruling in The Authors Guild Inc. v. HathiTrust 2012 WL 4808939 SDNY (2012). The HathiTrust was able to raise the defence of fair use in the context of providing access to copyright materials for those with disabilities. The judge held: ‘The totality of the fair-use factors suggest that copyright law's “goal of promoting the Progress of Science ... would be better served by allowing the use than by preventing it.” Bill Graham, 448 F.3d at 608. The enhanced search capabilities that reveal no in-copyright material, the protection of Defendants' fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fair use to the extent that Plaintiffs have established a prima facie case of infringement’.

Recommendation 7 The Australian Law Reform Commission should recommend that copyright exceptions for those with disabilities – and their carers, and assistants – should not be undermined by contract law or technological protection measures.

Recommendation 8 Statutory licensing is not a good means of providing access to cultural materials for those with disabilities.

Recommendation 9 As part of the Australian National Disability Strategy 2010-2020, the Australian Government should promote the digitisation of copyright works into accessible formats for those with disabilities.

Recommendation 10 The Australian Government should also play a role in the dissemination of such digitised copyright works both locally and internationally.

Recommendation 11 The Australian Government should also play a leadership role in promoting international agreements on copyright law and disability rights – including the proposed WIPO Copyright Treaty of the Blind. There is a need to facilitate the cross-border exchange of copyright works in accessible formats for those with disabilities.

Recommendation 12 Australia’s approach to copyright law reform should be informed by larger considerations of human rights. In respect of disability rights, there is a need to take into account the key principles of the United Nations Convention on the Rights of Persons with Disabilities 2006, including:

* respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons * non-discrimination * full and effective participation and inclusion in society respect for difference and acceptance of persons with disabilities as part of human diversity and humanity * equality of opportunity * accessibility * equality between men and women * respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.