Making copyrighted works available to persons with visual impairments

Information Outlook, May, 2003 by Laura Gasaway

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 SLA, jointly filed a comment suggesting a new exemption and criticized the earlier rulemaking results. (1)

Based on the very narrow parameters that the Copyright Office decided to follow in the last rulemaking, the library associations reiterated their 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 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 prevent access to and fair use of these works by persons with visual impairments.

Persons with limited eyesight use a variety of methods to make a work perceptible; some need voice output, others require large print, and some require text that is formatted on a large screen with appropriately sized letters. It is unlikely that e-book companies will be able to meet all these needs.

The legislative history of the 1976 Copyright 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 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 blind and visually disabled persons. 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 and use have been applied to e-books and other literary works in electronic format. These controls prevent persons who use screen readers or other text-to-speech or text-to-braille devices as aids to perception from accessing these works and threaten the way visually disabled individuals study, learn, and read for recreation. This is especially unfortunate, as less than 10 percent 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 this promise will not be fulfilled if technological controls prevent 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) Thes e 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 borne by other populations of readers. Although book publishers license the right to produce audio books separately from e-book rights, persons with visual disabilities are denied access to electronic publications because of their disability. Although the library community disagrees, some copyright holders and publishers consider the vocalization of electronic text by a screen reader to be 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.