Commercially available on reasonable terms

In my last post I started to look at changes to the disability exceptions contained in the Copyright, Designs and Patents Act 1988, as amended by The Copyright and Rights in Performances (Disability) Regulations 2014.

When I gave my talk at CILIP’s Executive Briefing on Copyright, it became apparent during the Q&A session that some of the terminology in the new exceptions was causing confusion. I have pledged to look through some of these, and the first one is the phrase ‘commercially available on reasonable terms‘.

This phrase only appears in the CDPA in relation to making accessible copies of copyright works for persons with disabilities. A person can make, or have made for them, a copy for their personal use that enables them to ‘enjoy the work to the same degree as a person who does not have that disability’, but only if ‘the same kind of accessible copies of the work are not commercially available on reasonable terms by or with the authority of the copyright owner.’

The commercially available caveat was a part of the previous exception, but ‘on reasonable terms’ is a new addition. Should the market determine the objective measure of value? Something that roughly corresponds could be said to be ‘reasonable’.

In 2013 the Accessible Books Consortium produced a set of best practice guidelines on accessible publishing. Three routes are outlined:

  • supply accessible files yourself in response to requests;
  • disseminate accessible files via an intermediary service such as the DAISY Consortium;
  • aim for all commercially available works  to have accessibility built in.

It is worth pointing out that the CLA Licence does not not state cost ‘on reasonable terms’ as cause for not purchasing an item.

Of course, what is accessible to one user will not necessarily be accessible to another, particularly in the case of ebooks. Technological Protection Measures can further hinder accessibility – the irony being that PDFs are accessible, but the package that they come in frequently is not.

Librarians will have to continue to advertise their services, get to know the needs of their learners, and ultimately, make a judgement call on whether a commercially available version truly is accessible to the person who needs it.

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