Initiative for Equitable Library Access

Electronic Clearinghouse for Multiple Format Production

Agreement Revision Activity

Prepared by Andrew Martin
March 10, 2008

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The Clearinghouse agreement was drafted mid-2005 and sent for signing to publishers and producers. Although to date there are only 8 publisher signatories, they represent most of Canada's (English language) textbook output. Trade publisher participation is low, but the CNIB, the principal producer in that sector, sources most of its electronic files directly from publishers. Smaller publishing companies generally are not participating, and nor are French language publishers. Producers have been supportive, with 9 signatories representing a substantial proportion of multiple format output.

The report on the Clearinghouse pilot, written by Andy Oates, highlighted several areas in which the current agreement might be revised to expand the scope of the project and to address various administrative challenges.

This review analyzes those recommendations in the context of consultations with key stakeholders, and research into UK and US developments. The goals are to:

• Make the agreement as useful as possible in maximizing the efficiency of multiple format production in Canada
• Ensure that the agreement is acceptable to as many publishers as possible
• Create mechanisms that will allow Canada to implement the trusted intermediary concept if that is the direction chosen by publishers, producers and Library and Archives Canada

The report on the pilot identified three principal areas of change to facilitate those goals:

• A modular structure to the agreement so that publishers can opt out of certain provisions without having to opt out of the Clearinghouse altogether
• Changes to the wording and/or presentation of the agreement to make it more easily understood by smaller publishing companies without access to in-house legal resources
• Minor adjustments to make it a permanent or ongoing agreement rather than solely for the duration of the pilot

Another recommendation was to address the issue of "foreign intellectual property", so that accessible materials can be shared with producers, libraries and users outside Canada.

Consultations

The consultations for this review are much less extensive than those that preceded drafting the original agreement. As at February 14, 2008 I have met or spoken to:

• Major publisher signatories: McGraw-Hill Ryerson, Oxford University Press, Wiley & Sons, Pearson Education Canada, Nelson Canada
• Jackie Hushion, Executive Director, Canadian Publishers' Council
• Jack Illingworth, Association of Canadian Publishers
• Mary Anne Epp, Langara College
• Donna Passey, Manitoba Education
• Marian Hebb, Counsel to Access Copyright
• Alicia Wise, Publishers' Licensing Society (UK)
• Margaret McGrory and Karen Taylor, CNIB

The principal points arising from these discussions can be summarized as follows:

Publisher feedback

• Strong support for LAC as trusted intermediary, and this would be preferable to sending files to producers and to the emergence of provincial repositories
• Strong preference for a voluntary system, to avoid the proliferation of federal and state initiatives in the US
• Effective communication of the Clearinghouse to producers, as multiple requests for the same titles are still being received
• Effective marketing of the Clearinghouse, to maximize publisher participation
• Regular statistics on Clearinghouse activity
• Concerns around non-visual disabilities in terms of proof and potential impact on commercial sales
• Strong preference for annual renewal of membership, perhaps by auto-renewal with notice
• Among post-secondary publishers, a preference to exclude private vocational colleges as eligible producers

The discussion at a group meeting with these publishers (February 11, 2008) raised other questions, such as whether publishers could ask for proof of disability, have the right to challenge a claim, and an opportunity to audit producer activity and record-keeping. These seem inconsistent with the goals of the Clearinghouse and would raise privacy and other issues. They are not therefore pursued in this review and analysis.

Consultation has focused on the larger publishing companies. It must be stressed, though, that the Clearinghouse was not really marketed to and is not broadly supported by the smaller companies. This is more than just a matter of communications. Although many of these companies simply don't know about the Clearinghouse, many of those that do are hostile in principle to the underlying exception. While it is a better use of resources to focus for now on the publishers whose works are most frequently needed, the Association of Canadian Publishers has been asked for (but has not yet submitted) its input.

Producer feedback

• Generally, the Clearinghouse is seen as achieving its goals
• It needs more publishers, but for textbooks the current membership covers the great majority of what is needed
• There are difficulties and delays when a title is distributed in Canada but published in the US
• Delivery times are often too great to enable producers to use the file, and some continue to rely on scanning
• Publisher contact information is not routinely updated
• Some producers questioned the value of requiring purchase of a print copy by the student, and their role in policing this
• For the CNIB, the Clearinghouse has very limited value because it includes so few trade publishers, and they hope that this will be remedied so that it becomes as near as possible a single point of reference for obtaining electronic files
• For the CNIB, the prohibition on sending accessible materials overseas limits their ability to participate in sharing agreements with comparable organizations outside Canada
• The language of the current agreement is perhaps more formal than required to achieve its objectives, and in some cases strongly reflects US publisher input in areas that should be governed more by Canadian norms and practice
• Related in part to the previous point, some producers argue that accessibility is a human rights matter and should not be abridged by contract, or a narrow adherence to the specifics of the Copyright Act, and certainly not at the behest of non-Canadian publishing companies

Other issues

• The agreement is not and was not designed as a contract. Small changes in terminology, together with more user-friendly language, might emphasize the distinction and make it acceptable to a larger number of participants
• The Clearinghouse is not a repository. This leaves a vacuum that at the K-12 level is being filled by provincial repositories that make supply of the e-file a term of textbook procurement. On the publisher side, it is hoped that LAC will eventually be able to undertake the repository function
• Timely updating of AMICUS is essential to the success of the initiative, as otherwise publishers may continue to receive multiple requests
• International developments cannot be ignored, although there is debate as to how far they should be anticipated. WIPO is exploring the possibility of a proposed exception allowing accessible materials produced in one country to be supplied to users in other countries with a comparable exception
• The UK publishers are reviewing several projects designed to increase the availability of accessible formats, including one for textbooks that could be similar to the Clearinghouse concept. The UK exception is narrower than the Canadian exception (it applies only to visually impaired persons) although publishers are advised by the PA to avoid discriminating against people with what the Canadian legislation categories as perceptual disabilities. However, the UK industry also wants where possible to promote commercial markets for accessible formats (e.g. audio books) for the trade sector
• The US legislative approach to accessibility is seen generally as fragmented and not necessarily helpful to producers. It may, though, be necessary to consult with the US-based legal counsel for some of the publisher participants, as their approval will probably be required before their Canadian subsidiaries can sign the new agreement

Analysis

None of the current participants sees a need to make radical changes. The agreement serves its original purpose and the Clearinghouse delivers benefits to publishers and producers. Most of the feedback arises from relatively minor aspects of administration. Some of these can be remedied through the agreement, but others (e.g. delays in responding and supplying files, checking the AMICUS database) cannot. Ultimately, the Clearinghouse relies on its participants to make it work.

While it is possible to restructure the entire agreement and redraft most or all of the content to make it less formal and more flexible, this may be problematic for some of the current participants as they will need to match the new against the old to ensure that there are no changes in meaning.

Some of the requirements imposed on producers are burdensome and (anecdotally) there are suggestions that they are not always followed. This isn't willful - not all producers are in a position to review medical certification, but rely on information supplied to them; and it isn't always feasible to verify that a print copy has been purchased by the student. Privacy legislation is also a factor. In the absence of evidence that there is abuse, or clear loss of sales revenue, there is an argument for dispensing with certain requirements, or at least giving publishers the option to say they are unnecessary.

Publishers are concerned about the definition of perceptual disability as it extends beyond visual disability. However, the exception clearly applies to non-visual disabilities where they impact the use of a print work. In the UK, publishers are encouraged to be receptive to requests for electronic files to make "accessible formats" for people with non-visual disabilities. As the Canadian exception creates the right to make multiple format copies, the definition in the current Clearinghouse agreement is intended only to facilitate that right, and not to expand or diminish the scope of the exception. Removing those parts of the definition that apply to non-visual disabilities would diminish its scope. This would be a matter of great concern to producers in the educational sector, and for LAC.

In Canada, the bulk of accessible format production for public libraries is undertaken by the CNIB. Their chief complaint is the shortage of trade publishers as Clearinghouse participants. They also want a simpler mechanism to authorize sharing repertoire with their foreign counterparts. An opt-in provision may address the latter. It seems unlikely that many publishers will allow this on a north/south or trans-Atlantic basis, at least until there is a global initiative on an industry basis and/or facilitated by legislation that might follow a WIPO recommendation. Including an option within the agreement is possible, but probably pointless as the indications are that it will not be adopted. Case-by-case permissions will therefore continue to be solution.

Publishers are not yet prepared to commit to lengthy terms of participation. The Canadian Publishers' Council group wants a maximum of 3 years, but with annual reconfirmation. Before the end of each year they want a report from the Clearinghouse (effectively, then, from LAC) with usage statistics for their company. These need to show the files requested, the number of copies made from those files, and the producers involved including (if the producer is supplying to another producer, as is the case with Langara College, the W. Ross MacDonald School, CNIB, etc) the institution being supplied. At the end of 3 years, another review might be appropriate, to take account of how the Clearinghouse is functioning, any practical issues arising, any changes in Canadian copyright law, and foreign law and practice.

The publisher concern with vocational colleges is that although the current definition of "eligible producer" probably extends to many of these colleges, there have been several instances of these colleges suddenly going out of business. This creates doubt on the part of publishers that electronic files can be entrusted to such colleges. Although the definition can be amended, it may be difficult to do so without also eliminating perfectly respectable private colleges and schools.

There is clearly a difference in the Canadian and US approach to the supply of e-files. The legislation is different, and relationships between publishers (as an industry) and producers may be different. In the UK, publishers (through their trade associations) are taking a proactive role in facilitating multiple format production. They also encourage a broader definition of disability than required by their Copyright Act exception, so that it includes perceptual but non-visual disabilities. For many Canadian publishers, the requirements of their US parent companies has to be influential and it is not the role of the Clearinghouse, or this agreement, to interfere with these inter-company relationships. However, it does seem reasonable to keep as close as possible to the framework and intent of Canadian legislation, in terms of language, scope and process.

Subsequent consultations

An earlier version of this document was circulated to publishers, producers and LAC. On the publisher side, there is consensus on the review, analysis and recommendations. Producer feedback highlighted:

• The importance of effective administration of the agreement
• The need to increase publisher participation
• Frustration over cross-border issues
• Desire to use language reflecting Canadian law and practice

Recommendations

Based on the initial and subsequent consultations, the agreement should be revised as minimally as possible. A complete restructuring is not needed and will put all current participants to a lot of effort in reviewing the document and comparing it with the current version.

Based on the consultations to date, and the analysis above, these are the principal recommended changes:

• Where there will be no ambiguity as a result, plain language to be used if practical
• Producers to be subject to broadly the same limitations as under the original agreement
• No change in the definition of "perceptual disability"
• A clear process for annual confirmation of participation during the proposed 3-year term
• Activity reporting to be clarified and incorporated into the annual renewal process
• Minor changes to producer obligations to reflect privacy concerns
• For post-secondary institutions, base producer eligibility on membership of the ACCC or AUCC
• LAC to undertake regular verification of publisher and producer contact information, and to have a clearer role in administering certain aspects of the agreement
• A more logical structure

Next steps

A draft revised agreement will be prepared by early March. Following feedback from Library and Archives Canada and other stakeholders, a final draft will be delivered before March 31, 2008.