Copyright in the Reading Disability World

Fri, Oct 9, 2009 at 5:47 PM

To: oped@nytimes.com

Dear Editors --

Amongst the current controversy and lawsuits involving Google, Kindle, Authors,
Publishers, Libraries, etc. is the issue of how this all affects those who are blind or otherwise
with a reading disability. The two prevailing formats these days are Braille – either on
embossed paper or through a digital media – or audio analog (tape) or digital audio format,
the prevailing digital audio format being DAISY.

Since 1996, via an amendment to the 1976 US Copyright Act known as the Chafee
Amendment, after its sponsor the late RI Senator John Chafee (or formally Section 121),
certain qualifying organizations known as 'Authorized Entities' can make reproductions of
copyrighted materials in ‘Specialized Formats’ and distribute them to qualifying individuals
without infringement of copyright and without the need to seek permission from the
copyright owner.

The definition under Section 121(d)(4) for Specialized Formats reads:

1. Braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities;
and

Most persons who read Braille learned to do so at an early age and the skill takes years of practice. DAISY
requires only the possession of the digital file and a digital reader which can be bought on Amazon or eBay.
The DAISY Consortium strives for a worldwide universal digital audio format and there are obvious reasons
why this would be desirable.

Hearings were held in May 2009 at the US Copyright Office over the current status of the
Chafee Amendment including issues concerning Specialized Formats. Several heads of
organizations representing Disability groups and Author/Publisher interests presented oral
and or written testimony as to where they think the future of Specialized Format should go.
The proverbial 800 pound gorilla in the room: Several such organization heads
acknowledged that, though it should be “correctly interpreted” as such or it should be
”clarified” as such, by a literal interpretation of the above statute language, DAISY does not
meet the definition of Specialized Format as it is not “exclusively” for persons with
disabilities. This is confirmed by the ANSI/NISO Standard definition of DAISY protocol
itself.

The Publishing industry legal representative has written that, when in question, any
legislative interpretation on intent of the Chafee Amendment is confined to remarks the
Senator made on the Senate floor during the bill’s introduction. Senator Chafee said (July 26,
 1996):

“Specialized formats refers to Braille, sound recordings--either on cassette or phonorecord--

and new digital formats that can be used for special software. To make certain that recorded
books and magazines are only used by those for whom they are intended, they are recorded at
a speed that simply does not work on standard tape players.

The National Library Service provides special tape players and record players to eligible
individuals. This equipment is not generally available to the public. “

Any reproduction of copyrighted material in DAISY format claiming copyright exemption under the
Section 121 Chafee Amendment may therefore be an infringement of copyright. … And the entire
disability community has been operating under a wink-and-a-nod since those DAISY materials
benefit such an otherwise poorly-served audience.

How do I know that the DAISY people know that DAISY does not qualify as a specialized format:
Because in his written testimony, the head of the DAISY consortium had this to say:

“It should be clarified that when talking about specialized formats, we mean formats that can
be effectively used by the target disability group.”

Funny. The word used above in the Section 121(d)(4) definition of Specialized Format is
‘exclusively’ not 'effectively'. ‘Clarified’ I guess means “should be changed to" effectively instead of
exclusively.

So why should all this concern me? I am not an author or publisher with rights to protect. I am a US
Library of Congress Certified Braille Transcriber. Because DAISY audio materials, intended for
persons with legitimate reading disabilities, are so close in format to commercial eBooks and could in
theory ‘leak’ into the general population, the US Department of Education among others has by
various agreements restricted legitimate rights -- granted elsewhere under Section121(b)(1)(B) in the
Chafee Amendment -- to users of digital Braille materials which pose no similar threat. This issue
relates to whether a person who is blind and has properly received a digital Braille file can send that
Braille file to someone like me for further corrections and editing, which it oftentimes desperately
needs.

The US Department of Education has said in writing that these restrictions are required to protect
copyright owners against infringement. To which I have responded: How can you protect against
infringement of copyright that which the Statute says is NOT an infringement of copyright? Lewis
Carroll would have loved it.

John Edwin Miller

US Library of Congress Certified Braille Transcriber

Note: US Copyright Office May 2009 SCCR hearings at < http://www.copyright.gov/docs/sccr/ >