In light of yesterday's posting on the perceptual disabilities exception, which I argue creates a huge barrier for Canadians with disabilities since they will be unable to legally access devices that can be used to circumvent, it is worth considering whether Bill C-61 violates the spirit and letter of the Accessibility for Ontarians with Disabilities Act (or will at a minimum necessitate a DRM accessibility standard). The AODA was enacted in 2005 with the goal of "developing, implementing and enforcing accessibility standards in order to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025." The Act will set out policy, practices, and other requirements that remove barriers with respect to goods and services. It defines barriers as:
"anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability, including a physical barrier, an architectural barrier, an information or communications barrier, an attitudinal barrier, a technological barrier, a policy or a practice"
That definition would likely capture DRM and it definitely captures the combination of DRM and Bill C-61's anti-circumvention provisions.
The Act already includes an accessibility standard for customer service that takes effect for the private sector by January 2012. That standard includes a requirement that providers of goods and services:
"shall use reasonable efforts to ensure that its policies, practices and procedures are consistent with the following principles:
Persons with disabilities must be given an opportunity equal to that given to others to obtain, use and benefit from the goods or services."
Bill C-61 arguably violates this standard. Persons with disabilities will not have an equal opportunity to use and benefit from many goods and services that use DRM since that DRM may limit or eliminate the use of technologies to read text aloud and the bill stops the circumvention of such limitations. The bill will also open the door to the Ontario government working toward a DRM accessibility standard that may mandate the kind of access that (unlike many other countries) Bill C-61 does not consider.
DRM and the Public
Ironically and sadly, DRM is in itself is blind as it deems all guilty. It’s been shown that restricting IP in a public arena is nothing short of disaster. If you don’t want your works subject to public scrutiny, in danger of being reverse engineered, or taken by others, then simply don’t publish them.
Which law takes precedence?
So which laws take precedence?
AODA, because it preceded C-61?
C-61, because it’s federal and not provincial?
C-61, because it it intrinsically tied to international obligations under WIPO and other similar treaties?
Or can we simply be like the USA, and don’t recognize the jurisdiction of any international legal body (ICJ as an example) and void the parts of treaties we don’t like whenever it suits us?
“perceptual” disabilities is not enoug
Let’s look at “perceptual disabilities” for a moment, please.
Most people think of this in terms of a visual impairment. Very few people will realize that this will include learning disabilities, cognitive impairments, people who require multi-modal inputs, mobility disorders (due to the lack of accessible interaction with popular formats).
I can see the monitor but I do not use a “mouse”. I do not have a “perceptual disability”. I, in this case, have an “interactive disability”.
The ability to content and format shift electronic data is crucial to open accessibility.
If content authors cannot be bothered to present their information in alternate formats, the community of people with disabilities and those who support them will find a way to fix it.
It may violate the text of the copyright act but will probably survive a Charter challenge.
The term “perceptual disability” actually excludes many types of disabilities due to its common contextual inference of catering to “the blind”, thank you CNIB.
There are “others”.
Very broad
If you look at the definition in the law (which does not change in C-61 that I can see), it’s very broad:
2. […] “perceptual disability” means a disability that prevents or inhibits a person from reading or hearing a literary, musical, dramatic or artistic work in its original format, and includes such a disability resulting from
(a) severe or total impairment of sight or hearing or the inability to focus or move one’s eyes,
(b) the inability to hold or manipulate a book, or
(c) an impairment relating to comprehension;
[…]
While the term “perceptual” usually mean blind, it doesn’t in this case. Basically, from the interpretation here at work when the question came up (I work in the disability field in the GoC) was anything that could prevent you from manipulating a copyrighted material. Take with a grain of salt as we are not lawyers, but it was asked from lawyers.
You should know that there are other opinions out there that say that as long as the disability is accommodated on request, the Ontario legislation isn’t breached. Also, there is I’m told a reasonable and practical requirement – in some cases, you just can’t accommodate. When looking at DRM, if the publisher is willing to supply a suitable format on request, that meets the standard. And in my experience, they almost always are. However, when so much of what we get here is produced overseas, it is difficult to see ho any mandated access can work anyway