Leaking the NDIS Modified I-CAN6 Could Actually be Legal Under Fair Dealing for the Purpose of Access by Persons with a Disability
This is a theoretical, but if one were to leak the NDIS modifications of the I-CAN6, there's a potential they could actually be protected from criminal prosecution under Copyright Act 1968 (Cth) due to a specific exemption.
Note: This may not protect them from civil liabilities, but just throwing out a hypothetical.
The key section in question is an exemption for 'fair dealing' for the purpose of access by a person with a disability. This typically allows modifying copyrighted content for accessibility purposes, though the act isn't restrictive on what's covered. I believe an argument could be made 113E would apply.
113E Fair dealing for purpose of access by persons with a disability
(1) A fair dealing with copyright material does not infringe copyright in the material if the dealing is for the purpose of one or more persons with a disability having access to copyright material (whether the dealing is by any of those persons or by another person).
(2) The matters to which regard must be had, in determining whether the dealing is a fair dealing for the purposes of this section, include the following matters:
- (a) the purpose and character of the dealing;
- (b) the nature of the copyright material;
- (c) the effect of the dealing upon the potential market for, or value of, the material;
- (d) if only part of the material is dealt with—the amount and substantiality of the part dealt with, taken in relation to the whole material.
(a) The character of this dealing would be entirely non-commercial and protective of human rights. Because the summary is delivered strictly to the participant to facilitate clear communication and self-advocacy within the NDIS framework, this factor heavily favors a finding of fairness.
(b) It functions as an administrative tool within a government-mandated scheme (the NDIS) to allocate public funding. Public interest in allowing us to understand a government-backed assessment that directly dictates our daily quality of life significantly outweighs the protection of the material's proprietary clinical structure.
(c) The publisher/owner does not sell any version of the modified I-CAN6; we can't buy it. It's not going to reduce profit for them if it's released.
(d) It may strengthen this if it was leaked only in part, for example only the parts that ensure participants understand the exact NDIS modified assessment process (the raw I-CAN6 is now public).
Just a hypothetical... I also don't know how this applies with the Freedom of Information act. In theory, it may eliminate the potential for the NDIA to rely on copyright to deny an FOI of the modified version, as it's for disability accessibility.
Disclaimer: I am NOT a lawyer. Please do not leak it based on a hypothetical you see on Reddit posted by someone with no formal legal studies...