Prepared by Andrew Martin
March 10, 2008
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:
The report on the pilot identified three principal areas of change to facilitate those goals:
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.
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:
The principal points arising from these discussions can be summarized as follows:
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.
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.
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:
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:
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.