Friday, May 29, 2015

DMCA hearings: visually impaired/ereaders

Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
In and out: this took 15 minutes.  This exemption will, I predict, be granted.
Proposed Class 9: Literary works distributed electronically – assistive technologies
This proposed class would allow circumvention of access controls on lawfully made and acquired literary works distributed electronically for purposes of accessibility for persons who are print disabled. This exemption has been requested for literary works distributed electronically, including e-books, digital textbooks, and PDF articles.
Proponents: Blake Reid, Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law
You’ve seen contentious exemptions and complicated issues; this one is very basic: the right of people who are visually impaired to read books. Basic human right, key to democratic society, uncontroversial renewal. We’re not asking for modifications, largely unapposed including AAP (notwithstanding reservations); circumstances have changed only marginally and circumvention is still necessary on individual and institutional level. Use is noninfringing, even more after HathiTrust; still very limited availability of noncircumventing alternatives. Only material changed circumstance is the Marrakesh Treaty, which makes this exemption necessary for compliance.
C: Thank you and students for helping to make a record in this class. It’s been very helpful to establish a need for an exemption.
Jonathan Band, Library Copyright Alliance: No one’s opposing.  Marrakesh Treaty point deserves to be reiterated: if treaty is ratified w/in the next 3 years, we need to have the exemption in place for compliance.
C: Can you elaborate on intersection of exemption and treaty?
Band: the treaty has a provision that countries need to have a way for visually impaired/authorized entities to circumvent to take advantage of any access authorized by treaty. Better to be statutory and not in need of renewal, but this would at least enable people to take actions authorized by Treaty.
Q: AAP mentioned epub and HTML5 format—could you provide more info?
Reid: we’re actually very hopeful about those formats someday being adopted on a widespread basis and provide a noncircumventing alternative in our lifetimes. Someday I may be able to avoid seeking renewal b/c all books come out in epub3 accessible, interoperable formats that work with text-to-speech and ereaders and braille readers. Unfortunate reality: not there yet, and not in next 3 years.  At this point, adoption is inconsistent; availability of titles in those formats and interoperability of titles purchased on particular platforms still isn’t there. I hope to have a different answer next time.
Band: even if we get to a point where all new books coming out meet that standard, you still have a legacy problem.
Reid: worth noting that addressing access to the archive will be a really hard problem. Every year that goes by w/o accessible format creates more archive that isn’t accessible. There are other challenges like user interfaces on tablets and phones; the tech has a long way to go. Encourage you to discuss w/relative, family member, friend who’s visually impaired—ask them how they use a tablet to access even a noncircumvented book.  You will think it’s broken: the computerized voice is bad; the tech has a long way to go. This exemption won’t fix everything, but it’s a helpful band-aid for folks looking to engage in self-help or to make books available to students or clients at an authorized entity.


  1. While the issue of 'fair use' as claimed by the proponents in their Round 1 filing seems not to have been discussed at the hearings, the posting of the Copyright Office's Fair Use Index analysis of the 2nd Circuit's ruling in Authors Guild v HathiTrust states the following:

    HathiTrust used the digital copies ... (2) to permit library patrons with certified print disabilities to have access to full texts of works ...

    If the terms of fair use apply and obviate the Chafee Amendment, then who 'certifies' that the recipient of copyrighted materials indeed has a print disability?

  2. That wasn't discussed, though I expect it would be whatever process one usually uses to receive either disability services or specific access for print disabilities, whether under the Chafee Amendment or not.

  3. If you read the filing of the proponents for Round 1, it says nothing about certifications ... and I stand by my filings in Rounds 2 & 3 that, if the Second Circuit meant how the proponents chose to interpret the ruling, then the proponents would not have had to so tortuously re-write the text of what the Second Circuit actually said.

  4. Why would certification be required? Under this wording, if a person isn't print disabled, they can be sued for violating 1201. In a case of abuse, a court could determine that the circumvention hadn't been for the purpose of accessibility.

  5. Well just who is print disabled? Under the 1976 Act it only mentions blind. Now we have all sorts of learning and cognitive disabilities that may take thousands of dollars to diagnose and obtain an expert opinion. Bookshare in Congressional testimony says it has more such members than those with a physical print disability.

  6. Ok, but so what? Are you saying that lots of people will pay thousands of dollars to be diagnosed with a print disability so they can circumvent? Or that people who aren't blind but have other print disabilities shouldn't be able to circumvent? The first seems implausible and the second undesirable.

  7. If you read the Proponents filing in Round 1, they describe what they consider to be 'fair use' as determined by the Second Circuit Court of Appeals in the HathiTrust ruling and not solely as it applies to the 1201 ruling.

  8. So maybe the opening paragraph to Section 107 should amended to include "for purposes such as ... the use by persons with a certified print disability, ...". As of now, even considering the language of the 2nd Circuit HathiTrust ruling as interpreted by the Section 1201 Class 9 proponents in their Round 1 submission, there is no indication that a person with a print disability, for the purposes of a fair use exception, is any other than a person who claims to have a print disability.