April 15, 2009 | By Danny O'Brien

Wanted: Your Stories of Disability Versus Copyright Law

In preparation for WIPO's initiative on Exceptions & Limitations to Copyright, the US Copyright Office is currently soliciting comments on the topic of "facilitating access to copyrighted works for the blind or persons with other disabilities". Written comments are due next week (April 21st, 2009), and there will be a public meeting in Washington on May 18th. EFF will be sending our own submission, as will many other IP and disability groups. But if you've worked on software or hardware to overcome your own visual or other disabilities, or co-operated informally (perhaps in an open source project) to provide wider access to content for users with disabilities, or have dealt with a publisher regarding the accessibility of texts, we'd like to encourage you to send the copyright office your own stories — and cc: us at accessibility@eff.org.

Much of current IP law on increasing accessibility to content is concerned with exceptions for narrow conditions or traditional institutions. For instance, the Chafee Amendment provides for free ebooks for the blind, but only through "authorized entities" — such as a dedicated government agency or non-profit organization (e.g. Bookshare). The Copyright Office's triennial list of exemptions from the DMCA's anti-circumvention laws includes a category for legally unlocking the DRM on ebooks — but if you do so, you are not allowed to market or share tools for removing this DRM to other disabled users.

Our experience of innovation in the digital world and its clash with existing IP law is that many overlooked examples come from individual technologists "scratching their personal itch", as well as loosely-organized groups. If DMCA's anti-circumvention laws (and ebook DRM) have prevented you as an individual, for example, from format-shifting content to a form usable by assistive technology, or even changed the font size of an ebook to a readable level, please send your story. Unexpected applications of new technology are important to raise too: if you are deaf, and wish to benefit from the possibility of "signing books" (many who are deaf from birth have difficulties with learning to read, and benefit from visual hand-signs in the same way that the visually-impaired benefit from simultaneous text-to-speech), write in.

As the Register of Copyrights noted when considering the anti-circumvention exemption for ebooks, the transition of media to the digital world

perhaps for the first time offer an individual blind person the possibility of "self-help" in making a copy of a literary work perceptible.

We want to make sure that the Copyright Office hears from everyone who is helping themselves, and yet finds their way thwarted by clumsy law or unnecessary technological restrictions.

The full text of the Notice of Inquiry is below (and also available as PDF here).

[Federal Register: March 26, 2009 (Volume 74, Number 57)]
[Notices]
[Page 13268-13270]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26mr09-110]

=======================================================================
-----------------------------------------------------------------------

LIBRARY OF CONGRESS

Copyright Office

Notice of Inquiry and Request for Comments on the Topic of
Facilitating Access to Copyrighted Works for the Blind or Persons With
Other Disabilities; Notice of Public Meeting

AGENCY: United States Copyright Office, Library of Congress.

ACTION: Notice of inquiry and request for comments; notice of public
meeting.

-----------------------------------------------------------------------

SUMMARY: The United States Copyright Office (Copyright Office) and the
United States Patent and Trademark Office (USPTO) seek comment on the
topic of facilitating access to copyrighted works for ``blind or
persons with other disabilities'' \1\ in connection with a forthcoming
meeting of the Standing Committee on Copyright and Related Rights of
the World Intellectual Property Organization. Interested parties are
invited to submit comments on the topics outlined in the supplementary
information section of this notice. The Copyright Office and USPTO also
announce a public meeting on the same topic.
---------------------------------------------------------------------------

\1\ Various terms are used formally and informally throughout
the world. When inquiring about experiences within the United
States, the term used in this Notice of Inquiry is that which
appears in U.S. copyright law. See 17 U.S.C. 121(d)(2). There, the
term ``blind or persons with other disabilities'' is defined to
include individuals who are eligible or who may qualify in
accordance with the Act entitled ``An Act to provide books for the
adult blind,'' approved March 3, 1931 (2 U.S.C. 135a; 46 Stat.
1487).

DATES: Initial comments on the Notice of Inquiry and Request for
Comments are due on April 21, 2009. Reply comments are due on May 4,
2009. The public meeting will be held Monday, May 18, 2009, from 9:30
---------------------------------------------------------------------------
a.m. to 5:30 p.m.

ADDRESSES:

Notice of Inquiry and Request for Comments

If hand-delivered by a private party, an original and five copies
of a comment or a reply comment should be brought to the Library of
Congress, U.S. Copyright Office, Public Information Office, Room LM-
401, 101 Independence Avenue, SE., Washington, DC 20559, between 8:30
a.m. and 5 p.m. The envelope should be addressed as follows: Office of
Policy and International Affairs, U.S. Copyright Office. If delivered
by a commercial courier, an original and five copies of a comment or
reply comment must be delivered to the Congressional Courier Acceptance
Site (CCAS) located at 2nd and D Streets, NE., Washington, DC, between
8:30 a.m. and 4 p.m. The envelope should be addressed as follows:
Office of Policy and International Affairs, U.S. Copyright Office, Room
LM-403, James Madison Building, 101 Independence Avenue, SE.,
Washington, DC 20559. Please note that CCAS will not accept delivery by
means of overnight delivery services such as Fedex, United Parcel
Service, or DHL. If sent by mail (including overnight delivery using
U.S. Postal Service Express Mail), an original and five copies of a
comment or reply comment should be addressed to U.S. Copyright Office,
Office of Policy and International Affairs, Copyright GC/I & R, P.O.
Box 70400, Washington, DC 20024.

Public Meeting

The public meeting will be held in the Montpelier Room of the
Library of Congress, James Madison Building, 6th Floor, 101
Independence Avenue, SE., Washington, DC 20559. The process for
submitting requests to attend and observe or participate in the
meeting, as well as the agenda, will be published on the Web site of
the U.S. Copyright Office no later than April 8, 2009.

FOR FURTHER INFORMATION CONTACT: Maria Pallante, Associate Register,
Policy and International Affairs, or Michele Woods, Senior Counsel for
Policy and International Affairs, by telephone at 202-707-1027, by
facsimile at 202-707-8366 or by electronic mail at mpall@loc.gov or
mwoo@loc.gov.

SUPPLEMENTARY INFORMATION:

Background

The United States is a Member State of the World Intellectual
Property Organization (WIPO) and an active member of the Standing
Committee on Copyright and Related Rights (SCCR). At recent meetings of
the SCCR, WIPO facilitated discussions on the topic of copyright
limitations and exceptions, including limitations and exceptions for
``blind, visually impaired and other reading-disabled persons.'' \2\ At
its next meeting (May 25-29, 2009), the SCCR will continue to consider
this topic, among others, and will exchange information and experiences
in order to deepen its collective understanding of the issues. As part
of the process, the SCCR is looking to the copyright limitations and
exceptions that are currently available for the benefit of the blind,
visually impaired and other reading-disabled persons around the world,
and has invited Member States to provide supplementary information
regarding their national laws and experiences.
---------------------------------------------------------------------------

\2\ This term appears in some relevant WIPO documents. See e.g.
``Conclusions of the SCCR,'' November 5-7, 2008, at http://
www.wipo.int/edocs/mdocs/copyright/en/sccr_17/sccr_17_www_
112533.pdf (last visited on March 20, 2009).
---------------------------------------------------------------------------

In preparation for the meeting, the Copyright Office and the USPTO
have been gathering relevant information. To date, the Copyright Office
and USPTO have participated in a series of informal meetings and
conference calls (primarily with stakeholders from the blind community,
but also with representatives of the library, book publishing,
software, motion picture, and nonprofit sectors) in which multiple
specific issues have been identified and a number of common points have
emerged.
On the basis of these preliminary discussions, the Copyright Office
and the USPTO understand that blind and other persons with disabilities
in the United States navigate many complex challenges when it comes to
accessing copyrighted works. Common refrains include delays in
obtaining accessible texts (with timeliness of accessible materials a
particular problem for students at all levels), compatibility problems
between available formats and the hardware devices employed by the
reader, and inconsistencies in the quality and accuracy of the
available, reformatted works. At the international level, the Copyright
Office and the USPTO were made aware of the existing framework through
which accessible works move across borders (i.e. through private
agreement and interlibrary

[[Page 13269]]

programs), as well as some of the difficulties the framework presents.

Possible Actions

Through discussions with stakeholders and previous meetings of the
SCCR, the Copyright Office and USPTO are aware of some measures that
might be appropriate for action at the national or international levels
(through Member States, WIPO or other mechanisms). Such possible
actions include the following: (1) Developing standardized
accessibility formats and other technical norms; (2) establishing
trusted intermediaries to coordinate resources, eliminate unnecessary
duplication of accessible works, and ensure best practices; (3)
providing technical assistance, coordination, and educational outreach;
(4) promoting market-based solutions achieved through private sector
copyright licenses or other agreements; and (5) developing binding or
non-binding international instruments, including a treaty that would
establish minimum requirements for limitations and exceptions for
blind, visually impaired and other reading-disabled persons. The
Copyright Office and the USPTO are interested in learning how these
areas of focus might address existing difficulties with access to
copyright works, whether applied alone or in combination with each
other. Suggestions as to measures not covered above are also welcome.
Please note that WIPO posts various documents from its meetings on
its Web site, including reports and agendas related to the
consideration of copyright limitations and exceptions. Documents from
SCCR meetings that included consideration of this issue can be found by
starting at http://www.wipo.int/meetings/en/topic.jsp?group_id=62 and
following the link to information for each specific meeting. A study on
copyright limitations and exceptions for the visually impaired can be
found at http://www.wipo.int/meetings/en/doc_details.jsp?doc_
id=75696.

Subjects of Inquiry

At this time, in order to allow further opportunity for interested
persons to provide their views, the Copyright Office and the USPTO are
seeking comment on several focused topics related to the provision of
access to copyrighted works for blind and other persons with
disabilities. Unless otherwise specified, the focus of the inquiry is
the experiences of interested parties residing or doing business in the
United States. Nevertheless, parties should not feel constrained from
describing transnational experiences and situations if they are
illustrative of a problem or success.

A. Experiences of Persons Within the United States With Respect To
Accessing U.S. Works or Sharing Accessible Copies Within the United
States

In general, the Copyright Office and the USPTO seek to learn more
about the experiences of the blind or persons with other disabilities
with respect to accessing and sharing U.S. copyrighted works within the
United States. Please reference any specific policies, practices and
projects that exist or are emerging in the education, library and
business sectors while considering the questions set forth below.
1. Applicable Statutory or Regulatory Provisions: The United States
has relevant existing limitations on exclusive rights in the Copyright
Act. Section 121 (the so-called ``Chafee Amendment'') authorizes the
reproduction of copyrighted works for blind or other persons with
disabilities under certain circumstances. Section 121(a) contains
general language providing that it is not copyright infringement ``for
an authorized entity to reproduce or to distribute copies or
phonorecords of a previously published, nondramatic literary work if
such copies or phonorecords are produced or distributed in specialized
formats exclusively for use by blind or other persons with
disabilities.'' Section 121(c) provides a specific limitation
applicable to publishers of ``print instructional materials for use in
elementary or secondary schools'' so that they may create and
distribute electronic files consistent with the Individuals with
Disabilities Education Act (IDEA). 17 U.S.C. 21(c). Those electronic
files must use the National Instructional Material Accessibility
Standard (NIMAS). Id. How have the Chafee Amendment and related
statutory and regulatory provisions worked in practice?
2. Private Sector Initiatives: The Copyright Office and the USPTO
are aware that book publishers have been involved in the development
and implementation of Section 121 and other laws applicable to
disabilities and education. What are additional ways in which the
private sector facilitates, or plans to facilitate, access to
copyrighted works? Please identify and describe in detail any existing
business models, licensing schemes, or technological innovations that
are relevant, not only for books but for other copyrighted works, e.g.,
magazines, newspapers, motion pictures, and software. To date, what has
been the result of these efforts in terms of achieving accessible
content? Do best practices exist? Turning to the nonprofit sector, what
are the activities, business models, or technology platforms that have
emerged and what has been the result to date? What if any are the
additional projects under consideration?
3. Library Programs: Libraries play an important role in providing
access to copyrighted works for the blind or persons with other
disabilities. The Library of Congress, through its National Library
Service for the Blind and Physically Handicapped, provides Braille and
audio materials (e.g., talking books) to eligible borrowers through
cooperating libraries in the United States. NLS also provides
interlibrary loan services to citizens of other countries through
qualified libraries or other institutions in those countries. Private
organizations, such as Bookshare, provide access to digital materials
through an online searchable library. What other sorts of libraries or
library services currently facilitate access to copyrighted works? What
physical and digital delivery methods are being used? What initiatives
have libraries taken to develop new services and to respond to evolving
needs and technologies? What coordination exists among national and
international library services?
4. Standardized Formats, Programs and Devices: In recent years,
entrepreneurs and other representatives of the blind or persons with
other disabilities have made significant progress in efforts to upgrade
and standardize the technical formats, programs and devices that allow
access to books and other text. These include the talking-book format
of DAISY (Digital Accessible Information System) that is compatible
with screen readers, as well as stationary and portable DAISY players
that feature synthetic-voices, and various versions of scan-and-read
software. Paper-based Braille has evolved into digital formats that
offer refreshable displays and nonlinear search capabilities when used
with applicable devices. Are there additional innovations in use or
under development today and, if so, what is their focus? What are the
impediments, and possible solutions, for improving existing
standardized formats, programs and devices, developing new ones, and/or
facilitating their interoperability?
5. Resources: To what degree is a lack of sufficient resources a
factor in providing access to the blind or persons with other
disabilities? What governmental, private sector, nonprofit, or
philanthropic resources exist? What types of resources are most needed?

[[Page 13270]]

What approaches to expanding available resources are most promising?
What objectives could be met and in what time frame if additional
resources were available?

B. Experiences of Persons Within the United States With Respect To
Accessing Foreign Works or Sharing Accessible Copies of U.S. Works With
Foreign Persons

Please comment on the experiences of the blind or persons with
other disabilities with respect to accessing foreign works within the
United States, or sharing accessible copies of U.S. works with
similarly-situated persons outside the United States. What kinds of
specific policies, practices and projects exist or are emerging in the
education, library and business sectors? How do existing laws create
incentives or constrain efforts? Please describe the ways in which
technology has influenced or could assist in providing access to
foreign works or the sharing of accessible copies. What are the legal
or practical impediments to transnational access and how are they
interrelated?

C. Other Comments on Facilitating and Enhancing Access to Copyrighted
Works

Please comment on the likely success of measures identified above
under the subsection entitled ``Possible Actions'' under SUPPLEMENTARY
INFORMATION. How might the measures best be leveraged, alone or in
combination, to enhance access for the blind or other persons with
disabilities? Are there additional governmental or private sector
actions that might serve the objective of enhancing access to
copyrighted works for the blind or persons with other disabilities?

Dated: March 20, 2009.
Maria Pallante,
Associate Register for Policy & International Affairs, U.S. Copyright
Office.
[FR Doc. E9-6637 Filed 3-25-09; 8:45 am]
BILLING CODE 1410-30-P


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