Submission from the Royal New Zealand Foundation of the Blind regarding “The Commissioning Rule, Contracts and the Copyright Act 1994”

The Royal New Zealand Foundation of the Blind (the Foundation) is a disability support service constituted under the Royal New Zealand Foundation of the Blind Act 2002.  The Foundation is the primary provider of habilitation and rehabilitation services to over 11,500 blind, vision-impaired and deafblind New Zealanders.

Our vision is that blind and vision-impaired people have the same opportunities and choices as other citizens to participate fully in society. Our mission is to remove the barriers faced by blind or vision-impaired individuals and to promote their participation in all aspects of life.  Amongst other activities, we provide library services for our members. This service includes producing information in accessible formats such as Braille, Large Print and Digital Talking Books both for our own library, to support members in specific endeavours and, in some cases, for educational or other providers, under commission.

Before reproducing material in an accessible format we seek permission from publishers.  Permission is usually, though not always, given by publishers.  The use of our accessible format material is limited to use by our members through library loans or as otherwise agreed with the publisher.  The Foundation makes comments on your discussion document with respect to commissioning and contract law only, although we have significant issues related to the Copyright Act 1994 that we would like to see addressed in any future review of the Act. 

Primarily, this submission intends to provide you with an example of our reproduction approach in order that our situation is considered in any review of the Act.  We consider that there is a lack of clarity of ownership regarding accessible materials produced under commission.  We would seek any review of the Act to confirm that accessible formats ‘manufactured’ by the Foundation are owned by the Foundation. 

As you may appreciate, the major cost of reproduction in an accessible format is the initial ‘manufacture’ of a master.  This is not an artistic endeavour, as is the photographic example you cite in the discussion document, but a technical one.  Once the master has been ‘manufactured’ subsequent reproduction is relatively inexpensive but it is not altogether clear who owns the rights to the accessible format master that we have manufactured.  For example, if an educational institute ‘commissions’ us to prepare an accessible format copy of a textbook in Braille and provide them with ten copies, the cost to them will be relatively high due to the initial ‘manufacturing’ required to convert the textbook from print to Braille but, if the educational institute later ask us to reproduce a further ten Braille copies of that textbook we are able to provide them with these additional copies for a more modest fee.   However, another organisation or individual may approach us for the same textbook.  We would provide that copy or copies at the same more modest fee associated with reproduction and, furthermore, not seek approval from the original commissioner, subject to the original Copy Right agreement with the original Copy Right owner.  Hence, we act in a manner that suggests we are the Copy Right owner of the accessible format material.  

As we act for the benefit of our members, all of whom are blind, deafblind or significantly vision-impaired, we consider that this approach to Copy Right regarding reproduction in accessible formats best serves our members’ interests.  Indeed, the Foundation would ultimately seek to have this right to access to information for blind, deafblind and vision-impaired people enshrined in Copy Right legislation in such a way that the Foundation can reproduce material in accessible formats for the benefit of our members without infringing Copy Right, or having to obtain permission from the Copy Right owner and, in such a way that can not be over-ridden by contract law.  In the first instance though, we would value achieving clarity around ownership of commissioned reproductions in accessible formats that allows us to retain the Rights to the masters we manufacture.

Thank you for the opportunity to comment on “The Commissioning Rule, Contracts and the Copy Right Act 1994” discussion paper.  We also look forward to the opportunity to have further input into possible legislative reform of the Copy Right Act 1994.  If you wish to discuss any matters raised in this submission please do not hesitate to contact me. 

Paula Daye

Chief Executive