MAKING COPYRIGHTED WORKS AVAILABLE TO
PERSONS WITH VISUAL IMPAIRMENTS
May 2003
In October 2002 the Register of Copyrights issued a notice of inquiry for the second anti-circumvention rulemaking procedure for exemption to the prohibition on circumvention of copyright protection systems for access control technologies. The notice called for comment from interested parties, including copyright owners, educational institutions, scholars, researchers and members of the public. The five major library associations, including Special Libraries Association, jointly filed a comment suggesting a new exemption plus criticized the earlier rulemaking results.[1]
Based on the very narrow parameters which the Copyright Office decided to follow in the last rule-making, the library associations reiterated its support for the two classes of works that were exempted as a result of the 2000 rulemaking. The comment states that there is no evidence that the marketplace has corrected either of the original exemptions: (1) for “literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsoleteness” and (2) for “compilations consisting of lists of websites blocked by filtering software applications.”[2] Therefore, the associations support extending the period of exemption over the next three year period through October 23, 2006.
Additionally, the library associations suggest a third exemption for literary works including e-books that are protected by technological measures that block or inhibit perception via a “screen reader” or similar text-to-speech or text-to-braille device. This proposed exemption would be limited to persons with a visual or print disability. The same recommendation was made by the American Foundation for the Blind, an organization whose mission is “to enable people who are blind or visually impaired to achieve equality of access and opportunity that will ensure freedom of choice in their lives.” Clearly, technological controls applied to literary works in digital form that prevent access to and fair use of these works by persons with visual impairments.
Persons with limited eyesight have a variety of needs to make a work perceptible; some need voice output, others require large print while some require formatting the text on a large screen with appropriately sized letters. It is unlikely that e-book companies will be able to meet all this array of individualized needs.
The legislative history of the 1976 Act includes a statement that making copies of a protected work in a form for use by blind persons is fair use. A 1997 amendment to the Copyright Act added a new section 121 which provided an exemption to the reproduction right for an authorized entity that reproduces or distributes “copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced in specialized formats exclusively for use by blind or other persons with disabilities.” This exemption excludes standardized or secure tests, related teaching materials and computer programs except for the portions thereof that are in conventional human language, including description of pictorial works that are displayed in the ordinary course of using a computer program. Digital text, audio and braille qualify as specialized formats under the amendment.
This amendment was an important expansion for the blind and visually disabled. The only previous mention of making copyrighted materials available to the blind was in section 710 in which copyright owners could voluntarily license the Library of Congress to reproduce and distribute certain categories of literary works in “Braille or similar tactile symbols or by fixing a reading of the work in a phonorecord, or both.”[3]
Since the 1997 amendment, technological measures designed to control access to and use have been applied to e-books and other literary works in electronic format. These controls prevent persons who utilize screen readers or other text-to-speech or text-to-braille devices as aids to perception from being able to access these works and threaten the very way visually disabled individuals study, learn and read for recreation. This is especially unfortunate since fewer than 10% of the literary works published in the United States are ever made available in braille or as talking books. Further, when they are made available, it is often months after the work is first published. For readers with visual or print disabilities digital publishing offered the promise of “off the shelf access,” but not if technological controls prevent their access by persons with these disabilities. The library associations believe that correcting this inequity is not likely to harm the market for or value of these works. [4] These individuals have already purchased the work or paid for access; all they seek is the ability to read it.
The conflict of this technology with e-books Digital Rights Management (DRM) technology is clear, and the impact on those with visual disabilities is not born by other populations of readers. Although book publishers do license the right to produce audio books separately from the e-book right, individuals with visual disabilities are denied access to electronic publications on the basis of their disability. Although the library community disagrees, some copyright holders and publishers consider the vocalization of electronic text by a screen reader as an infringement of the right of public performance, so they often expressly require e-book publishers to block perception of electronic text by screen readers.
Even if a court should later determine that the right of public performance is implicated by the use of vocalization technology, this surely would be fair use when the purpose of such performance is to facilitate perception of a lawfully-made copy by an individual user. Moreover, educational institutions are charged with compliance with the provisions of the Americans with Disabilities Act (ADA), and technological access controls threatens the ability of these institutions to comply with the provisions of the ADA for blind and print impaired individuals.
The Association of American Publishers (AAP), in their reply comment rejected this proposal stating that it would be inconsistent with the way the Congress had previously accommodated the use of copyrighted works by blind and other visually disabled persons. It further defended the access controls on e-books that prevent text-to-speech because the very availability of e-books has already increased the availability of these works to everyone, including persons with print disabilities. Although the AAP has previously supported efforts to make works available to blind persons and others with disabilities, it opposes this proposed exemption. It believes that the word “accessibility” has a different meaning in the context of federal disabilities law than does “access” in the context of preventing the circumvention of access controls. Further, the AAP believes that the 1997 amendment was an attempt by Congress to balance the rights of copyright owners with the needs of blind and visually impaired persons. Its reply comments conclude with the statement that e-books are in their infancy and it is too soon for the government to impose technology mandates on them. The library associations disagree.
For additional information concerning the availability of copyrighted works for blind and visually impaired individuals, consult the following:
1. Recordings for the Blind and Dyslexic[5]
2. National Library Service Books for Blind and Physically Handicapped Individuals[6]
3. Audio-Assisted Reading Access for Students with Print Disabilities[7]
4. American Council of the Blind[8]
5. American Foundation for the Blind[9]
6. Readings for the Blind[10]
7. Bookshare.org[11]
[1] The Copyright Office has posted all of the comments on its website, at http://www.copyright.gov/1201/2003/comments/index.html.
[2] See “Copyright Corner” in Information Outlook, January 2001 for a discussion of the first rulemaking results.
[3] Under this provision, the National Library Service for the Blind and
Physically Handicapped at LC, if it has a license from the copyright holder,
selects and produces full-length books and magazines in braille and recorded
formats which it distributes to a cooperating network of regional and local
libraries for eligible borrowers. Braille books and magazines are also
available on the Internet through Web-Braille.
[4] For
further information see George
Kerscher & Jim Fruchterman, The
Soundproof Book: Exploration of Rights
Conflict and Access to Commercial EBooks for People with Disabilities, at http://www.openebook.org/doc_library/informationaldocs/soundproof/soundproof.htm.
[7] Carol
Evans, Audio-Assisted Reading Access for
Students with Print Disabilities, http://www.rit.edu/~easi/itd/itdv05n1-2/article5.html.