This paper was refereed by the Journal of Electronic Publishing's peer reviewers.

Abstract

This paper argues that electronic barriers intended to protect intellectual property can prevent equal access to digital materials by readers with visual or hearing disabilities, and thus deny those readers their fair-use rights. It provides a basic overview of copyright law, summarizes publishers’ concerns about intellectual property, and discusses information access by users with special needs to explain why digital rights management (DRM) is used, how it can interfere with access and fair use, and some ways those problems are being addressed.

Consider these hypothetical scenarios:

• You are first in line when sales of the new Harry Potter book begin at midnight. You pay the cashier and hurry home, staying up all night to read the latest tale. When you’re done, you give the book to your sister. When she finishes reading it, she sells it on eBay. Has either of you broken any copyright laws?
• Because you use assistive technology to read print materials, you purchase the newest Harry Potter title as an e-book from an online provider. You download the e-book and turn on your computer’s voice synthesizer but you can’t hear any sound. Technology built into the e-book to protect the content permits viewing only. A friend who is a computer wizard shows you how to unlock the text for use with your screen reader. Has either of you broken any copyright laws?
• Reading the newest Harry Potter book makes you curious to see the movies. You rent a copy of a Harry Potter video but are surprised to find out that it has no captions. Because you are hard of hearing, you can’t really follow the action the way you’d like. You give it to a friend who knows how to use a special software program to add closed captions. He makes a copy of the rented video and adds captions to it, then gives you both the original and the enhanced copy. Has either of you broken any copyright laws?

The answers are No, Maybe, and Yes. The differences among the scenarios illustrate how electronic barriers intended to protect intellectual property rights can prevent access to digital materials and interfere with the fair use of those materials by people with print disabilities. This article provides a basic overview of copyright law and a summary of publishers’ concerns about intellectual property rights. As Rebecca Tushnet notes, because there is no explicit right of access in U.S. copyright laws, there is an inherent conflict between content access and intellectual property rights. This article examines that conflict and explains why digital rights management (DRM)—technology that publishers use to control or restrict digital media content on electronic devices—can have negative impact on access by users with visual, hearing, or motor disabilities. The article provides examples of how hurdles created by DRM may be resolved without circumventing content owners’ rights.

Disability Law and Copyright

Publishers rely on copyright laws primarily to protect their works from unauthorized reproduction or redistribution. However, according to William S. Strong, copyright legislation (Title 17 of U.S. Code 107) permits “reuse of copyrighted material in reasonable quantities for purposes that are culturally useful—or at least benign—and do not undermine the market or potential market for the work.” Sections 107 through 118 of Title 17 codify what has come to be called the doctrine of fair use, developed over time by court rulings that delineated four factors to be considered: the purpose and nature of the use; the nature of the copyrighted work; the amount of the work used; and the effect of the use on the work’s market potential. The Copyright Management Center reports that court decisions have included as fair use some types of copies made for use in educational settings. Although many publishers argue that such use of a digital work makes it too easy for copies to reach the commercial market, Strong notes that there is no copyright violation as long as that use does not supplant the market for the original.

The Chafee Amendment to the U.S. Copyright Act of 1996 (Public Law 104-197, sec. 316) added Section 121, a “Limitation on Exclusive Copyrights for Literary Works in Specialized Format for the Blind and Disabled.” It permits “an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work . . . in specialized formats exclusively for use by blind or other persons with disabilities.” Thus, according to Frederick Bowes and the National Library Service, a nonprofit organization or government agency with the primary mission of providing adaptive services can convert some printed works into digital text without obtaining permission from the copyright owners. Further reproduction or distribution is still prohibited. Nevertheless, this exemption alarmed publishers, who were already worried about how to protect content sold as e-books. Edward Felten points out that their early attempts at DRM technologies, which they hoped would prevent misappropriation of digital data, were so restrictive that few e-books were sold to any users in the 1990s. Libraries were among the earliest proponents of e-books for many reasons, including their potential to ease the burden on budgets and shelf space; to support distance learning; to provide access to patrons with disabilities; and to increase circulation among a population increasingly accustomed to remote access via the Internet. But because publishers are contractually obliged to protect the work of their authors, Bowes says, the Chafee Amendment made them afraid that electronic copies made by or for people with disabilities would somehow find their way to other readers, creating costly legal liability issues and loss of income.

George Kerscher and Jim Fruchterman note that after the Chafee Amendment was passed, software companies Microsoft and Adobe hurried to develop e-book reading systems with speech capability. However, they also allowed publishers to disable certain parts of that access, often making the materials worthless to people with disabilities. For example, some publishers consider a text-to-speech adaptation to constitute an audio version of a book, the rights to which can be copyrighted or assigned as a separate product. After an intense lobbying effort by the Association of American Publishers and other industry groups, Congress passed Public Law 105-304, the Digital Millennium Copyright Act of 1998 (DMCA). Alan Dinsmore and Paul Hilts point out that the DMCA includes a provision outlawing the unauthorized manufacture of or traffic in any technology used to circumvent copyright protection. Bowes says that the juxtaposition of the Chafee Amendment with the DMCA—one permitting reproduction in specialized formats, such as text-to-speech, but the other apparently prohibiting the use of any technology, such as synthetic-voice screen readers, to make or use those formats-created a legal ambiguity. A three-year exemption for noninfringing uses was issued in late 2006, including “[l]iterary works distributed in e-book format when all existing e-book editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book's read-aloud function or of screen readers that render the text into a specialized format.” (17 U.S.C. 1201(a))

For example, Gallaudet University, in Washington, D.C., the world’s only higher-education institution specifically for deaf and hard-of-hearing students, provides free video-captioning services to faculty and academic departments, which would seem to be a fair use of copyrighted materials in order to provide access for students with hearing disabilities. However, according to the university’s Caption FAQs, the service is provided only if each video to be captioned is accompanied by written permission from the copyright holder, in order to avoid any possibility of infringement.

Digital Rights Management: Pros and Cons

The exercise of fair use becomes more difficult as publishers focus on ways to protect their ownership rights from unauthorized uses made possible through technological innovations. Most publishers usually encode some type of DRM security technology in their products to prevent attempts to adapt a work for other uses. Yet some DRM technologies may seem unfairly aimed where they are least needed. For example, Joe Clark notes that a person with a visual impairment may not be permitted to extract closed captions included in a commercially released video in order to hear them via screen-reader software, while Bill Comcowich points out that Google, Yahoo, and other commercial search engines are permitted to offer online video monitoring services that search for key words in the closed captions provided with television broadcasts.

According to Hilts, publishers use DRM technologies “to exploit and manage the rights inherent in a work. . . . The publisher uses DRM to identify the users of its intellectual property, to take payment from them, to define the ways in which the content may be used and to monitor the use to make sure it is within bounds, and finally to prevent illegal copying and redistribution of the work.”

To understand how DRM could be such a positive tool, it is helpful to remember that the buyer of a book, for example, is not paying for its intellectual content but only for the right to read that content in a specific format—between paper covers, perhaps, or through cyberspace. For some people, however, purchasing (or borrowing) a book does not provide access. People with disabilities have the same right to read the content of books as anyone else. Yet, Kerscher and Fruchterman point out, while that right is legally protected, less than 10 percent of published books are made available in accessible formats. Technology exists to convert inaccessible formats to ones that can be used by readers with disabilities. However, because publishers can use DRM to lock content to their specific definitions of the way it may be used, such as blocking access to an e-book via synthetic-voice software, they may consequently lock content away from people with disabilities. In fact, says Dinsmore, when the American Foundation for the Blind researched DRM at the Library of Congress in 2003, it found that more than half of all titles authorized for digital sale had locked content and thus were not available for use with a screen reader. DRM tools have been compared favorably to traffic-control speed bumps, a means of controlling drivers’ behavior. Like speed bumps, however, DRM may not distinguish among individuals and their purposes, Tushnet notes. Just as a speed bump does not retract for a police officer who needs to exceed the speed limit, she says, a DRM barrier to digital content may not automatically disappear for a user with a visual disability.

From a publisher’s viewpoint, DRM offers valuable functions in the digital age. According to Hilts, DRM technology might be a server that stores content and metadata, or a packaging tool that prepares content for distribution. It might be a program that generates a combination of rights and encryption keys with corresponding content metadata and identification of the user or device that will use those rights. It might receive the user’s request for rights, send the user’s identification for licensing, use the encryption keys for the licensing to unlock the content, and send the content to the user’s application, such as Adobe Acrobat Reader. However, any DRM technology that monitors or restricts access to digital content also may interfere with the user’s lawful use of a copyrighted work, such as when synthetic-voice software is blocked from reading an e-book. Allen Renear and Dorothy Salo, Lawrence Lessig, and others say this allows publishers to control specific uses before the courts decide whether those uses are fair. As Felten has argued, “DRM systems should be seen as a tool for reinforcing existing legal constraints on behavior arising from copyright law or by contract, not as a tool for creating new legal constraints.” Barriers to access for people with disabilities have economic and social impacts on society, including lost contributions and lower productivity from potentially valuable workers, higher unemployment costs, and more school dropouts, according to Bowes. Renear agrees that “access to books by people with disabilities should not only not be impeded by an e-book content format, but that format should take advantage of the powerful resources of digital information and computer processing to improve and enhance that access, ensuring full participation in contemporary culture and society.” Managing customer relationships is more in publishers’ long-term interest than managing—and restricting—digital rights, Hilts concludes.

Some Responses to DRM

Claire Stewart is the head of Digital Media Services at Northwestern University Library. An anecdote she tells on her copyright blog describes the way most people cope with the barriers erected by DRM. While searching the Web site of EDUCAUSE, a nonprofit organization with a mission “to advance higher education by promoting the intelligent use of information technology,” Stewart discovered that most of the articles provided in Adobe’s Portable Document Format, or PDF, were locked. She could neither copy and paste text nor make a local copy for annotation. When she complained via the site’s Web feedback form, an EDUCAUSE staffer apologized. “‘The reason many of the PDF works are locked down from text copying is to protect them from being plagiarized and other types of copyright infringement,’” the staffer explained. “‘If you need to have the work in text for copying purposes, I suggest that you use a PDF converter. There are free downloads of the software on the [W]eb.’” As Stewart points out, this makes DRM look pretty silly—just a speed bump in the path of those who would steal intellectual property. She concludes, “DRM . . . punishes the law-abiding far more than the lawbreakers.”

Barriers to information access posed by DRM have prompted a variety of initiatives to work with and around it. Here are a few prominent examples.

• George Kerscher and Hiroshi Kawamura describe the Digital Audio-based Information System (DAISY) Consortium, a worldwide organization of nonprofit groups that provide information to persons who are blind or print-disabled. DAISY has collaborated with the National Information Standards Organization (NISO) to develop a format that allows simultaneous presentation of full text and graphics coupled with an audio file. According to Jennifer Sutton, text is created in Extensible Markup Language (XML), and the audio format is synchronized with the text using Synchronized Multimedia Integration Language (SMIL).
• Bookshare.org is an “online community of visually impaired and otherwise print disabled individuals . . . who enable book scans to be shared.” Bookshare.org supplies accessible books in NISO/DAISY XML-based formats for Digital Talking Books and in BRF format for Braille devices. While titles supplied by the NLS and Recordings for the Blind and Dyslexic may be of higher quality, Bookshare.org says it offers a larger library at lower cost. Bookshare.org uses DRM to identify qualified users, obtain contractual use agreements, provide copyright notices, encrypt and fingerprint content in a security database, and monitor transactions for “excessive downloading of content or other unusual activity.”
• Sign Smith Studio software enables electronic captioning in American Sign Language for educators, content developers, and other parties interested in making digital audio content accessible to deaf and hard-of-hearing people. According to Vcom3D, the company behind the technology, it works with developers and publishers of educational software to add three-dimensional character animation using sign language or visual/gestural communication.
• Adobe Acrobat 7.0 is the result of Adobe’s collaboration with DRM technology companies to provide access to PDF content on screen readers and magnifiers. This version of Acrobat allows users to configure the software to assistive technology for their specific vision, hearing, or motor impairments, and to add personal tags into PDF documents. It also allows publishers to build accessible content in PDF files, and includes templates for government agencies that are compliant with Section 508 of the Rehabilitation Act. Version 7.0 also has a built-in text-to-speech feature called Read Out Loud, which can be used on any personal computer without additional assistive technology.
• The International Digital Publishing Forum (formerly the Open eBook Forum) and the World Wide Web Consortium’s Web Accessibility Initiative are trying to standardize open file formats to get around the problem of DRM. Renear and Salo write: “The basic idea is to define an interchange format that could mediate between publishers’ formats and the various reading device formats.” Publishers would convert their in-house files to the interchange format, and reading devices would convert the interchange format into the reading device format. The goal, Renear and Salo say, is to “move from binary, proprietary, and nonrevisable electronic formats” such as Quark, Word, PostScript, or PDF, “toward text-based, open, and revisable formats” such as HTML, ASCII, and ultimately Open eBook Publication Structure.
• The Center for Applied Technology also champions universal document design to avoid the time, cost, and quality control issues of scanning or rekeying and tagging documents. Bowes writes: “By producing a well-tagged digital version of a work, a publisher can, with a single digital document, respond to many needs that currently require multiple conversions or are wholly unmet for people with disabilities.”
• DigitalConsumer.org, an organization devoted to protecting fair-use rights in the digital world, has developed The Consumer Technology Bill of Rights. DigitalConsumer.org endorses “a positive assertion of the rights of citizens to use content that they have legally acquired.” It rejects the exemption-based approach of public policy, which “expects the government to figure out the entire set of possible fair uses of technology,” and notes that “anti-circumvention rules make it difficult for libraries to archive and loan content.” Articles 5 and 6 of its Bill of Rights state that “Users have the right to translate legally acquired content into comparable formats” and “Users have the right to use technology in order to achieve the rights previously mentioned.”

Summary

Once you have purchased that new Harry Potter book in print, you may read it, give it away, discard it, or sell it without violating copyright law. But if you purchased that title as an e-book, your right of access to its content will vary according to the license agreement you signed. For example, you may be allowed to read it only once, or only for a limited time, or view it only on screen. Printing it or copying it into an application for use with a screen reader may be allowed if all existing e-book editions of the title contain access controls. If you rented the title as a video and made a copy of it in order to have captions added, your copy is likely not a permissible use of the original and is a violation of the DMCA.

DRM has created new hurdles for groups of people already struggling to gain lawful access. Publishers who misuse DRM as a way to hang on to old models of information distribution are reminiscent of those who stubbornly held on to their blue pencils when desktop computers first were available, unable to see the potential in change and innovation. However, William Kasdorf says, as in-house production processes have become digital, publishers’ comfort in accommodating conversion of their works to accessible formats has grown. As they become willing to provide it, original content that takes advantage of the latest digital technology will likely result in revenue that overcomes publishers’ fears and encourages them to develop even more accessible digital products, which, as Renear notes, “are increasingly expected by a public for whom the World Wide Web is a part of daily reading life.” In time, people with disabilities and their advocates can help publishers of digital media understand how fair use has come to be predicated on access, and that increasing access by people with disabilities can only benefit everyone involved.

Elsa F. Kramer works as an editor in the publishing industry. She recently completed a master’s degree in library and information science at Indiana University in Indianapolis. Her research focuses on access to and usability of electronic resources, information evaluation, bioethics, and philanthropy.

Links from this article

Title 17 of U.S. Code 107, http://www.copyright.gov/title17/

Public Law 104-197, sec. 316, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_public_laws&docid=f:publ197.104

Public Law 104-197, sec. 316, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_public_laws&docid=f:publ197.104

Title 17 of US Code 1201(a), [formerly http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+17USC1201]

Galludet University, Caption FAQ http://tv.gallaudet.edu/captions/faq.htm

Section 121 of the U.S. Copyright Act, http://www.copyright.gov/title17/92chap1.html#121

Digital Millennium Copyright Act, Public Law 105-304, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ304.105

Section 508 of the Rehabilitation Act, http://www.section508.gov/index.cfm?FuseAction=Content&ID=3

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