Blind and Low Vision Education Network NZ
Te Kotuituinga Mātauranga Pura o Aotearoa
This is the response by the Blind and Low Vision Education Network NZ
(BLENNZ) to the discussion document “Marrakesh Treaty: Possible Accession
and Options for Implementation”, which was issued by the Ministry of
Business, Innovation & Employment on 30 October 2015.
BLENNZ is a national school that provides a network of education services to 1557
blind, deafblind and low vision learners throughout New Zealand from birth to 21,
including those who have additional special needs. BLENNZ was established as a
national network of services in January 2005. It is one of the special schools
nationally that have been legislated to provide residential provision for learners.
The purpose of BLENNZ is to ensure that the education needs of blind, deafblind
and low vision learners are identified and appropriate programmes and services are
available. It aims to support the government goals for education by enhancing
education opportunities for its learners, facilitating access to and participation in the
regular curriculum and developing skills for independence.
As such, BLENNZ is particularly interested in this discussion document as we
believe that it provides an exciting way forward with respect to accessible information
which will be of direct benefit to all our learners.
We have responded to the questions upon which we feel competent to speak, and
have included some initial observations which sum up our position with respect to
the treaty and the contents of this particular discussion document.
BLENNZ welcomes the opportunity to submit its comments on what we believe to be
one of the most important initiatives currently under discussion. We wholeheartedly
endorse the Ministry’s preference that New Zealand accedes to the treaty, and in
particular support Option 3 as outlined in this discussion document.
All of the learners who are associated with BLENNZ, and many of their parents and
whanau will benefit directly if New Zealand ratifies the Marrakesh Treaty. The
proposed way forward in option 3 will also be of particular value to our community as
many of our learners will benefit from being able to call upon the support of their
care-givers to access the content which Marrakesh will make available to them.
From the perspective of BLENNZ and our community, advantages to New Zealand
resulting from acceding to the Marrakesh Treaty are outlined well in the discussion
document. However, we particularly draw attention to the following:
•
Increased effectiveness of current government funding, through existing
contracts between the Ministry of Education and the Blind Foundation, by
removing the need for duplication of existing accessible works. This frees
HOMAI CAMPUS
t. 09 266 7109 / f. 09 267-4496 / w. www.blennz.school.nz
2 McVilly Road, Manurewa / Private Bag 801, Manurewa / Auckland 2243
•
•
up resource to allow more educational titles to be available for import and
the creation of new accessible works not available anywhere else;
More efficient use of funds secured via the charity dollar, since most
accessible content produced in New Zealand is done so by the Blind
Foundation through funds donated by the New Zealand public.
Access to tertiary education will be easier for print disabled people who
need to study using text books produced outside New Zealand. Many print
disabled people have difficulty in completing their studies due to difficulties
in timely and ready access to text books and information they need, which
may limit their ability to achieve qualifications and get into employment;
We are therefore urging Government to take steps towards ratifying the Marrakesh
Treaty as soon as possible so that all people living in New Zealand who are currently
experiencing the book famine (but especially learners in educational environments)
can benefit from the advantages that the Treaty will bring.
1. Do other prescribed bodies use the section 69 exception? If so, how do they
create accessible format copies?
BLENNZ has recently applied to become a Prescribed Body under S69 of the 1994
Copyright Act and, in the event that we are successful would of course operate
within the parameters of the Act or future legislation.
2. Are there any other barriers or impediments to produce accessible format
copies under the existing exception that have not been canvassed above?
We believe that the barriers have been well captured.
3. How do other prescribed bodies apply the commercial availability test?
As we currently understand it, The Blind Foundation employs dedicated staff who,
among other duties they have, search for existing commercially produced and
available accessible versions of requested content. In particular, attention is paid to
whether the accessible format is the same format as required by the end-user: e.g.,
a braille version would be considered accessible in itself, but not to somebody who
does not read braille. Similarly, an audio version may be appropriate for some
readers but not others, for whom braille or large print may be better suited.
4. Does this section correctly describe the rights holders and organisations
that represent rights holders in New Zealand who are involved in the
publication of written material?
Yes as far as we understand the current situation.
5. Are there any other relevant organisations or individuals?
N/A
6. What kind of services do these organisations currently provide for the blind
and people with other forms of print disability?
BLENNZ’s range of services are outlined in our Charter, from which the following is
our Mission:
“To enable learners who are blind, deafblind or have low vision to reach their full
potential, BLENNZ provides quality education and specialist teaching services in
partnership with whanau, educators and the wider community.”
We believe in a collaborative approach with other blindness agencies, consumer
organisations and with interested parties outside the blindness community, such as
libraries, educational institutions and government departments, many of which
provide services to blind and low vision people directly, or do so in the course of their
day-to-day provision to the general public.
7. Does the current operation of the exception limit what they can provide and
if so, how?
We believe that one of the most significant obstacles faced by Prescribed Bodies
currently is the ability to meet demand on a timely basis. This has a detrimental
effect on the ability of print disabled people to receive the content they need, when
they need it. Similarly, when resources are tight, prioritisation decisions of one format
against another, and even one request against another have to be made, and this
can also militate against equal access to information. Recreational material is as
important as formal educational material, but available resources must mean that
one requirement is prioritised over another. The ability of parents, adults, and
adolescents to source accessible content from organisations other than existing
Prescribed Bodies would give them quicker access to more material.
8. What impact, if any, are initiatives like DAISY, TIGAR and Bookshare having
on the availability of accessible format copies of works in New Zealand? To
what extent is this impact likely to change in future? What could be done to
enhance their reach?
Bookshare and TIGAR have significantly increased access to accessible content
here in New Zealand, but this would increase exponentially should the Marrakesh
treaty be implemented. This is particularly relevant with respect to recreational
reading, something we need more of here. BLENNZ is especially interested in how
the growing adoption of EPUB3 by educational publishers will lead to more
accessible content being produced at source by the publishers themselves. EPUB3
has many elements of DAISY baked into it and therefore has the potential for future
content to be born accessible.
9. What challenges are faced by people with print disabilities in obtaining
accessible format copies to meet their particular needs? Has this changed
over time? Do you think any other factors are relevant in the description of the
current circumstances facing people with a print disability when trying to
access works?
The increasing capability of technological solutions has been a double-edged sword.
While in many ways it is providing faster and better ways to produce accessible
content (as illustrated in our response to Q8), many technologies deployed have
themselves been inaccessible and in some cases have added complexity to an
already problematic situation. For instance, the ability of organisations like the Blind
Foundation to produce accessible content is constrained by capacity and resource,
but it is also complicated by the need to deal with locked electronic files. Such
Technical Protection Measures mean that only some technically-adept organisations
will have the necessary skill, let alone capacity to navigate such obstacles.
Another obstacle is the increased requirement to be online in order to access
information. While online electronic information has proved to be a real boon for
those who have the ability to go online, we know that the number of people online is
much lower in the blind and low vision community than it is for New Zealanders as a
whole.
10. Do you agree with the problem definition? What relative weight do you put
on each problem listed above?
We do indeed agree with the problem definition. Not being a Prescribed Body we do
not yet have a sufficient body of evidence which would enable us to put a weighting
on the three problems, but we recognise each of them as being significant. We
would comment that not all transcriptions are the same: some transcription is
relatively straight-forward, while others (such as STEM materials for instance) are
complex and take longer to produce. The ability to import such content would go
some way to alleviating the delays currently experienced by blind and low vision
readers in New Zealand.
11. Is the uncertainty resulting in either breaches of rights holders rights or
leading to fewer accessible books being produced? Please provide details.
We know anecdotally that these uncertainties exist, and we believe that they are
usually mitigated thanks to good working relationships between the various
interested parties. While it is great that such relationships exist (and long may they),
no system should rely entirely on them and all sides will benefit from greater
certainty.
12. Are there any other problems with the current exception?
We believe that there needs to be more certainty as to which organisations can and
should be Prescribed Bodies under the current exceptions, and that this will be
important when determining which organisations can reasonably be an Authorised
Entity in the future.
13. Do you agree with the policy objectives?
Yes, BLENNZ agrees with these policy objectives.
14. Are there any other (policy) objectives that should be taken into account?
Not from BLENNZ’s perspective.
15. Do you think there are any other viable options? If so, please provide
details
We think the three options fully cover all choices.
16. Do you think there are any other advantages or disadvantages in retaining
the status quo?
No. We do think it worthy of note however that, as more and more high-production
countries around the world either accede to, or indicate an intention to accede to the
treaty, New Zealand will be left behind and our blind and low vision learners will be
disadvantaged when they can least afford it. It is difficult to see how New Zealanders
would be able to benefit from the potential which electronic technology provides (as
opposed to physical, hard copy materials) if we remain outside such a critical
international agreement.
17. How could access to works in accessible format copies be improved
without acceding to the Marrakesh Treaty and implementing legislative
change?
While additional monetary resource would alleviate some of the capacity problems
described earlier, it would do nothing to overcome the wastage caused by
duplication across borders, and even capacity would only be increased marginally.
18. Should the definition of works be extended to include artistic works? What
would the consequences be?
Yes. This would reflect the changing ways in which content is published today: more
and more works will be multimedia in the future. We recognise that clear definitions
would be necessary.
19. Is clarity on export and import useful? What are the advantages? Are there
any disadvantages?
Yes, clarity will always be useful. We believe that cross-border exchange will be
useful to all parties, and greater clarity would help to guard against mis-use. We also
believe that it will be beneficial to our colleagues in Pacific island countries who
currently have little if any access to information and the treaty will encourage best
practice.
20. Do you think there are any other advantages or disadvantages in joining
Marrakesh by making the minimum legislative amendments required to meet
our obligations and make the exception workable for cross-border exchange?
No. We prefer Option 3 because we think that we should do it once and do it well
with respect to increasing access to information. The alternative would be piecemeal.
21. Do you agree there is benefit in extending the exception to specifically
allow people with a print disability and caregivers acting on their behalf to
make and import accessible format copies? If possible, please provide
examples.
Yes. Individuals could make their own choices in their own time. Many of our
learners will rely on assistance from a parent to make access to information real for
them. Not having to go through a third party will speed up such access, as well as
provide other broader benefits such as creating an understanding of individual rights
and responsibilities. It would facilitate autonomy and independence, encouraging the
enquiring mind. It will also free up the resource of prescribed bodies to do what
others can’t, such as the production of more complex materials.
22. Are there any other advantages or disadvantages in allowing people with a
print disability and caregivers acting on their behalf to make and import
accessible format copies?
No
23. Would further guidance be required on the relationships between local
authorised entities and authorised entities and beneficiaries in other
countries?
We appreciate the value of providing assurance between parties which will give
some rigour to the system. Authors, publishers and rights-holders may need some
assurance, especially in the early stages of implementation.
24. Is amendment required to provide clarity that reading disabilities such as
dyslexia are included? What would be the impact of specifically extending the
definition to include those with reading disabilities?
We believe that such groups should be considered as eligible for inclusion, and that
they would be already under S69, but would welcome any legislative changes which
clarified this. We absolutely believe this to be the intent of the treaty.
25. Would it be useful to modernise the language used in the current definition
of print disability?
It is always useful to have updated language. The current S69 contains outdated
language which would not be used today (e.g., handicap). As “print disability” is used
throughout the treaty and therefore likely to be so in any consequent legislation,
definitions will be helpful.
26. Do prescribed bodies currently have practices and procedures along the
lines prescribed by the Marrakesh Treaty?
BLENNZ is not in a position to comment on the procedures and practices used in
other organisations.
27. Would it be useful to provide greater clarity around the role and obligations
of authorised entities, and make the role and obligations of prescribed bodies
more explicit?
As a potential Authorised Entity, BLENNZ would welcome such clarity.
28. How will libraries and educational institutions use this exception compared
to the normal library lending model?
We perceive they may use some form of interloan system, but we believe that
guidance and clarity as to how these would fit in with the treaty would be needed.
29. Would opening up the exception further, for example by allowing a wider
range of entities to use the exception pose problems for rights holders? If so,
how could those problems be addressed?
BLENNZ is not in a position to comment on this but believes that it is important to
work with rights-holders to ensure that their concerns are addressed and dealt with
appropriately. We believe that this will be best achieved as part of the process of
monitoring the implementation of the treaty once ratified.
30. Should there be specific remedies for rights holders in instances where a
prescribed body or authorised entity is found to be breaching the Copyright
Act, or where an organisation that is not prescribed undertakes accessible
format production without permission?
Yes, and these should be carefully worked out and efforts taken to ensure that
Authorised Entities understand their responsibilities. A collaborative approach with
rights-holders, Authorised Entities and the Ministry would be of particular value here.
31. Would a mandated reporting system, for example replicating the TIGAR
system, be desirable?
It would probably help with respect to transparency, and indeed to Authorised
Entities’ ability to track how the treaty is working. It does need to be simple and not
onerous.
32. Is the Bookshare model for determining whether a person has a print
disability (requiring medical certificate or other prescribed documentation)
useful? If not, are there alternative useful models?
Yes it is one good model among several. Membership of BLENNZ, the Blind
Foundation or other appropriate organisations would be a useful passport to be a
qualifying print-disabled person. There will also need to be means by which people
who are not members of such organisations could demonstrate their ability to meet
the criteria.
33. Should further guidance or regulation be provided on how the commercial
availability test should be applied? If so, what sort of guidance would be
useful?
BLENNZ’s main concern is that the test needs to respect the end-user’s
requirements: i.e., that the format provided meets their needs, as described earlier in
our response to Question 3.
34. Would it be useful to include a defined term similar to the Marrakesh Treaty
which focusses on the needs of the end user rather than the format?
Yes. BLENNZ supports this approach completely. Formats will change over time as
technology advances and this must be allowed for. Furthermore, content in braille is
as inaccessible to a person who cannot read braille as print would be, and the same
is true for any other format.
35. Would this ensure that the exception is better future-proofed by being able
to respond to changing technologies?
Yes
36. Do you agree that joining the Marrakesh Treaty and considering other
changes to improve the operation of the exception within the framework
allowed for by Marrakesh is the best option?
Yes.
37. Are there any concerns regarding the quality of accessible format copies of
work that may be imported or created under the Marrakesh Treaty framework?
No, there are numerous organisations around the world which set standards when it
comes to accessible format production, and quality of such content is usually part of
such standards.
38. Are there any other advantages or disadvantages in terms of greater
certainty around legal rights and obligations?
No, not beyond those already discussed.
39. Do you foresee any other advantages or disadvantages for New Zealand in
joining the Marrakesh Treaty?
No, we see only benefits.