UNTERHALTER AJ
contain are many and varied. The technologies that are used to render literary works in
accessible format copies are developing and provide different solutions for different
impediments.
[89]
What this means, as the final sentence of Article 4(1)(a) of the Marrakesh Treaty
provides is that “[t]he limitation or exception provided in national law should permit
changes needed to make the work accessible in the alternative format”. The exposition
of the examples described above indicates that this cannot, with any measure of
certainty, invariably take place by way of reproducing literary works (with their
inclusion of artistic works), no matter how generously that term is reasonably
interpreted. It may well be that some accessible format copies reproduce the very
content of the original work, and no more. But others require latitude to use adaptation
to best render the work in an accessible format. There is no justification to reason that
accessible format copies must be restricted to reproducing original literary works so as
to permit section 13 to save the Copyright Act from constitutional invalidity. Quite the
opposite is true. Those who serve the interests of persons with print and visual
disabilities should be given the greatest latitude to produce literary works in accessible
format copies and to develop technologies to do so that are ever better at rendering the
original work in the best possible way, tailored to the varied incidents of the
impairments such persons suffer. That requires, as a matter of probability, the freedom
to make adaptations and not merely reproductions.
[90]
Once that is so, the power conferred upon the Minister in section 13 cannot
adequately serve to cure the constitutional invalidity of the Copyright Act that I have
identified. It follows that Professor Dean’s defence of the constitutional validity of the
Copyright Act cannot prevail. The statutory right conferred upon copyright owners to
authorise the reproduction and adaptation of original literary works (and their inclusion
of artistic works) gives rise to the scarcity of literary works in accessible format copies
for those with print and visual disabilities, thereby infringing their constitutional rights.
The remit of section 13 is confined to the reproduction of a work. That limitation does
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