This article is intended to discuss making copies of copyrighted works for educational purposes for the benefit of persons with a disability, who sometimes need an alternate format of a copyrighted textbook or document in order to read it.
Copyright law
First, let’s examine the concept of “copyright.” Copyright basically means the right to produce or reproduce a work (œuvre), as defined in subsection 3(1) of the Copyright Act:
- 3 (1) For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right
- (a) to produce, reproduce, perform or publish any translation of the work . . .
The Copyright Act (Loi sur le droit d’auteur) is a federal law which students or teachers need to refer to before making copies. Translators may refer to the Copyright Act when clients ask them to translate a document that is or may be copyrighted.
Copyright infringement
Without the copyright owner’s consent (consentement), copying a document may be an infringement (contrefaçon). Under section 2 of the Copyright Act, we read:
- Infringing means
- (a) in relation to a work in which copyright subsists, any copy, including any colourable imitation, made or dealt with in contravention of this Act,
- (b) in relation to a performer’s performance in respect of which copyright subsists, any fixation or copy of a fixation of it made or dealt with in contravention of this Act,
- (c) in relation to a sound recording in respect of which copyright subsists, any copy of it made or dealt with in contravention of this Act, or
- (d) in relation to a communication signal in respect of which copyright subsists, any fixation or copy of a fixation of it made or dealt with in contravention of this Act.
- The definition includes a copy that is imported in the circumstances set out in paragraph 27(2)(e) and section 27.1 but does not otherwise include a copy made with the consent of the owner of the copyright in the country where the copy was made; (contrefaçon).
A special case: Adapted books
For educational purposes, schools, non-profit organizations and the Service québécois du livre adapté (a service provided by Bibliothèque et Archives nationales du Québec) sometimes produce an alternate format or adapted version of a copyrighted book or document for persons with a handicap or perceptual disability. Such copies are known as “adapted books”:
An adapted book, also referred to using the terms alternative format, alternate format or print substitute, is a communication medium used instead of standard printed materials to provide people who have visual or perceptual impairments with access to reading. An adapted book can be a Braille book, an analogue audio book (on cassette), a digital book (in a file or on CD), a large print book, an electronic text or an AudioVision document. (Source: Bibliothèque et Archives nationales du Québec)
The production of adapted books is permissible under section 29 of the Copyright Act. This section of the Act contains the notion of “fair dealing” (utilisation équitable), which permits some cases of reproduction for educational purposes that do not infringe copyright. The reproduction of a work for educational purposes may be permitted if it meets the fair dealing criteria:
- Fair Dealing
[Marginal note:] Research, private study, etc.- 29 Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.
Unfortunately, fair dealing is not clearly defined in the Act. In case of doubt, it’s best to check with experts such as Copibec in Quebec. Copibec is a non-profit social enterprise whose mission is “to apply a collective management approach ensuring that the rights of authors and visual artists as well as their publishers are respected when their text- and image-based content is used.” If you have any questions on this topic, please visit the Copibec website.
A terminology issue: “Handicap” versus “disability”
In normal use, “persons with a disability” is considered more acceptable than “persons with a handicap,” because the term “handicap” may be offensive to some people. However, under Quebec law, the term “handicapped person” is used rather than “person with a disability.” For example, Quebec’s Charter of human rights and freedoms refers to a “handicapped person” in section 48 and other sections. The Quebec Act to secure handicapped persons in the exercise of their rights with a view to achieving social, school and workplace integration (Loi assurant l’exercice des droits des personnes handicapées en vue de leur intégration scolaire, professionnelle et sociale) (E-20.1) also uses the term “handicapped.”
A list of terms discussed in this post
- adapted book, alternative format, alternate format or print substitute (livre adapté, support, remplacement, or média substitut)
- consent (consentement)
- copyright (droit d’auteur)
- copyright owner (titulaire du droit d’auteur)
- fair dealing (utilisation équitable)
- infringement (contrefaçon)
- person with a disability; handicapped person (Quebec law) (personne ayant une incapacité; personne handicapée)
- person with a perceptual disability (personne ayant une déficience perceptuelle)
- work (œuvre)
