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Chapter 11. Copyright
As a type of intellectual property law that protects the rights-holder’s control over certain uses of a work—including the right to reproduce, create derivative works, or distribute copies—copyright may seem at odds with accessible publishing efforts. Largely, efforts to make published works accessible have precisely been efforts to reproduce, create derivative works of, and distribute copies of works that are unusable in their original format for readers with print disabilities. And indeed there are instances in which copyright may stand in the way of efforts to make publications more accessible. However, copyright also gives users the right to make certain uses of works without permission, and the terms of copyright are largely favorable to the uses associated with access for readers with print disabilities. There are some exceptions, and there are important steps that all players (authors, publishers, vendors, libraries, users) may take now in order to ensure that copyright law continues to enable uses associated with accessibility.
In U.S. Copyright Law, there are “exceptions” to the protections of copyright in which a user of a work need not ask permission of the owner of a work for certain, defined uses. Two of these exceptions apply to uses associated with accessibility: Section 121, or the Chafee Amendment, and Section 107, or Fair Use.
In the current United States Copyright Code, Section 121 allows nonprofit organizations or governmental agencies to provide alternative accessible copies of previously published nondramatic literary works in specialized formats exclusively for use by blind or other persons with disabilities. This powerful amendment, introduced by Senator John Chafee and signed into law by President Bill Clinton in 1996, accelerated and expanded the specialized production of accessible format works for readers with print disabilities. Prior to this amendment, the special format conversion houses that created copies for the National Library Service (NLS) would not begin a single step of conversion before receiving permission from the rights holder, resulting in a greater lag time between print and accessible versions, a backlog of unprocessed but in-demand works, and a list of “off limits” works for which the owner would not grant permission. It is a wonder that the NLS operated as successfully as it did under these conditions, but following the passage of this amendment, the NLS operated with greater freedom and less friction in its processes to build a catalog of accessible works.
Yet the powerful provision of the Chafee Amendment is closely hewn. As Lingane and Fruchterman (2003) put it, “The essence of the social bargain between publishers and the disability community was to provide easier access to people with disabilities while protecting the economic interests of publishers. Chafee was drawn narrowly to seal this bargain.” The amendment is narrow in its definitions of every relevant term. It is narrow in defining the entity who may make alternative accessible copies, the type of work that may be copied, the format in which the copy may be distributed and, of course and always, the audience who may exclusively use the copy—“blind or other persons with disabilities.”
Under Chafee, the protections for making alternate accessible copies of works cannot be enjoyed by any entity or individual but only by an “authorized entity.” Such an entity must be “a nonprofit organization or a governmental agency” and must have “a primary mission to provide specialized services” to “blind or other persons with disabilities,” and those services must be “relating to training, education, or adaptive reading or information access needs” (17 U.S.C. § 121 (d)(1)). Such a definition obviously applies to the conversion houses of the NLS but less obviously to educational institutions, libraries not serving a specialized population, and other organizations that serve the general public.
Furthermore, not just any work can be copied—only “nondramatic literary works.” Nondramatic leaves out musicals, plays, and motion pictures, while literary—defined as works “expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects … in which they are embodied”—leaves out visual, performative, and audiovisual works and sound recordings. This means that works that fall outside of the “nondramatic literary” definition are unaffected by the Chafee Amendment and, for the purposes of the NLS, are treated in the same way as they have been since 1931, with a request for permission sent to the rights holder and the hope that permission will be granted, and quickly.
Finally, not just any type of copy can be made. Chafee protects the creation and distribution of copies in “specialized formats,” a term that includes “braille, audio, or digital text” or, “with respect to print instructional materials, includes large print formats” (17 USC § 121(d)(4)). And these alternate format copies must be, and can only be, “distributed exclusively for use by blind or other persons with disabilities” (17 USC § 121(d)(4)). This final limiting clause governs the entire thrust and intent of the amendment. The amendment is intended to allow for uses of a work that serves people with print disabilities, and it is also intended to ensure that such uses do not interfere with any uses of the work in other spheres, with the market and distribution of the work in general, or with the entire ecosystem in which the work is lawfully used, copied, bought, and sold.
The line drawn around this protection, and the qualification of an “authorized entity” in particular, has generated controversy between rights holders whose interest is in protecting the distribution and market value of a work, and educational and cultural heritage organizations whose interest is in serving the public, some members of whom are blind or have print disabilities.
Colleges, universities, and libraries have been particular sites of disagreements. The Association of Higher Education and Disability (AHEAD), a professional organization for student disability services offices, holds that “colleges and universities, and especially their disability service offices, should be recognized as ‘authorized entities’ as defined under the Chafee Amendment” (AHEAD, 2006, p. 5). Judge Baer, in a landmark decision on HathiTrust v. Authors Guild, noted that “the ADA requires that libraries of educational institutions have a primary mission to reproduce and distribute their collections to print-disabled individuals, making each library a potential ‘authorized entity’ ” and concluded that a university “has ‘a primary mission’ to provide access for print-disabled individuals, and it is consequently an authorized entity under the Chafee Amendment” (Baer, 2012, pp. 22–23).
The Author’s Guild appealed Judge Baer’s 2012 decision, and an Appeals Court found that the large-scale digitization of books in HathiTrust and access to the digital copies for users with print disabilities did not infringe on copyright because of Fair Use. The decision reaffirmed that the transformative use of works, that is, digitizing them and making them available for search and research, was a clear example of Fair Use.
For most libraries that make digital accessible copies of works for individual users with print disabilities as such needs arise, it is Fair Use rather than the Chaffee Amendment that protects this activity. Long before mass digitization projects, the House Report on the Copyright Act of 1976 stated that “the making of copies or phonorecords of works in the special forms needed for the use of blind persons” is a “special instance illustrating the application of the fair use doctrine” (ARL, 2012).
The HathiTrust decisions and other recent decisions have given libraries more standing in creating accessible copies for patrons with print disabilities in particular, especially “where there is strong evidence of a public policy favoring access from the courts, from legislative history, and from other laws favoring the activity, and where the market has apparently failed completely to serve a given community, courts can invoke fair use to protect an institution that provides access to otherwise inaccessible works” (Butler, 2015, p. 5). That is, even when digitization is not transformational (e.g., the digitization of a single work for the purposes of reading the work), this use is nonetheless justified “because of the special circumstances of the disabled” (Band, 2015, p. 5). In a future in which accessible versions of new publications are readily available, this argument may no longer hold. However in a present reality in which accessible versions are rarely available, local conversion for the purposes of print-disabled access is justified.
The copyright laws discussed earlier apply to the U.S. context. The United States is also party to international copyright treaties—the Berne Convention and bilateral agreements—that require the United States to respect the copyright of works originating in other countries. However, given the U.S. Copyright Law exceptions, those works can also be converted for the use of people with disabilities under Chafee Amendment and Fair Use. For a user and a library in another country, however, the use (conversion) of a work would depend upon the copyright laws and exceptions in that country. “Over 50 (primarily developed) countries have adopted exceptions that allow the making and distribution of accessible format copies. However, over 130 WIPO countries, in which the majority of print disabled people live, do not have copyright exceptions relating to the print disabled” (Band, 2013a).
The Marrakesh Treaty, developed by the World Intellecutal Property Organization’s (WIPO) Standing Committee on Copyright and Related Rights, is meant to address this disparity across countries and to support the sharing, across national borders, of accessible copies for users with print disabilities. The treaty was signed in Marrakesh, Morocco, in 2013, by fifty-one countries (a WIPO record for initial signatories) and entered into force in 2016 when it reached twenty ratifying countries (World Blind Union [WBU], n.d.). Today it has been ratified by thirty-seven countries whose “citizens can now benefit from the increase in accessible materials through cross-border sharing and the increased production of books under the Treaty’s provisions” (WBU, n.d.). The ratification especially benefits “those countries that do not have existing limitations and exceptions in their laws to address access by persons who are print disabled or do not have large numbers of accessible-format works” (Cox, 2015, p. 15).
The Marrakesh Treaty also stands to benefit countries like the United States, as Krista Cox (2015) has explained:
The United States, for example, already has the Chafee Amendment (which permits the creation of accessible-format works), the fair use doctrine, and exceptions to the rules governing import and export. However, if a print-disabled person in the United States seeks an accessible-format copy produced in another country, the copyright law in that country might prevent the export of the accessible copy to the United States. The Marrakesh Treaty would solve this problem by permitting authorized entities to import and export accessible format works for beneficiary persons, allowing entities to share resources.
In addition to allowing for the sharing of books between countries with a common language, the Marrakesh Treaty would benefit the print-disabled in the United States who speak other languages. In the US, approximately 13 percent of the population speaks Spanish. The United States also has a significant number of persons who speak Chinese, Tagalog, French, Vietnamese, German, Korean, Russian, Arabic, Italian, and Portuguese. Native speakers of these languages would benefit from the cross-border exchange provisions of the Marrakesh Treaty.
As of 2018, the United States has signed the treaty but not ratified it. “U.S. law currently complies with the Treaty, and the United States could ratify the Treaty without amending the Title 17” (Band, 2013b). Ratification remains important, however, because as Jonathan Band has explained, “the Treaty should result in more Contracting Parties adopting exceptions permitting authorized entities to make accessible format copies and to export them to other Contracting Parties, including the United States. This will be particularly helpful to the print disabled in the United States that are interested in reading foreign language books” (Band, 2013b, p. 21).