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Before the
UNITED STATES COPYRIGHT OFFICE
LIBRARY OF CONGRESS
Washington, D.C.

Public Knowledge submits these comments in response to the Copyright
Office’s Notice of Inquiry published at 74 Fed. Reg. 13268 on March
26, 2009. Public Knowledge is a public interest advocacy organization
dedicated to ensuring that consumers have access to information contained
in copyrighted works on fair terms. We commend the Copyright Office for
inviting public comments and holding a hearing on the important issue of
facilitating access to copyrighted works by the blind or persons with
other disabilities.

Introduction

One fundamental purpose of U.S. copyright law is to enrich the lives of
the public by promoting access to works containing information and
entertainment. Because the blind and the visually impaired need and
deserve access to these works just as much as sighted individuals,
copyright law and related laws should not impose barriers that prevent
the blind and the visually impaired from accessing works under copyright.
As one representative for the blind observed, “there's nothing [the
blind would] like better than to be able to go to [their] local bookshop
and buy the electronic version of the latest book by [their] favorite
author on the day it's released and at the same price as the printed
version. Or the newspaper.”^[1] However, current market practices do not enable the
blind and the visually disabled to realize this dream. Works made
available in accessible formats are distributed by specialized
organizations that are dedicated to serving the needs of the
blind^[2]. These
works are expensive to produce and therefore the universe of literary
works available to the blind is limited^[3].

In addition to market practices, limitations imposed by the law may also
be responsible for this situation. Converting standard works to
accessible formats implicates the reproduction and distribution rights of
copyright owners. In the United States, Section 121 of the Copyright
Act^[4] permits
organizations dedicated to serving the blind to make these works
accessible to the blind. However, the section limits the entities that
can make accessible copies and limits the formats in which these copies
can be made available. In addition, the section still allows publishers
to be held liable for making digital copies of their works available to
those who make accessible copies for the blind. Access to these digital
copies should reduce the cost of producing accessible
copies.^[5] These
limitations of the law, combined with the expense involved in making
accessible copies, has greatly reduced the number of works available to
the blind. Although adaptive technology would solve a number of these
problems, the use of digital rights management (DRM) frustrates these
efforts. In order to address this problem, the Copyright Office should
call for changes to laws and market practices that prevent adaptive
technologies from working with digital works made available in standard
formats.

Representatives for the blind and visually impaired explain that the
ability to import and export accessible copies across countries would
reduce costs and result in greater availability of accessible
works^[6]. Yet laws
in a number of countries prevent importation of accessible
copies.^[7] The
United States has one of the largest collections of accessible copies,
which should be allowed to benefit the blind and visually impaired in
other parts of the world. At the World Intellectual Property Organization
(WIPO), the Copyright Office should urge changes to laws of other
countries so that accessible copies can be exported from the U.S. to
these countries.

1. The Copyright Office should advocate for changes to laws and market
practices that prevent adaptive technologies from working with works
distributed in standard formats

Generally, works in accessible formats are made after the production and
publication of works in standard format for use by sighted individuals.
Making works in accessible formats (such as Braille^[8], audio books^[9], and large print books) is
expensive,^[10]
leading to delays in their production and distribution.^[11] In addition, these
expenses result in publishers making a very small percentage of such
works available.^[12] Many of these shortcomings can be overcome with
the use of adaptive technologies—hardware or software products that
convert characters that appear on a computer screen into accessible
formats like Braille displays, digital speech, or enlarged
text.^[13] Use of
adaptive technologies reduces costs associated with conversion to
accessible formats and distribution of content.^[14] One significant advantage of adaptive
technology is that disabled readers need not depend upon publishers or
specific authorized organizations to provide the text. Anyone, including
individuals and for-profit entities, may develop and market adaptive
technologies that can work with digital works made available in standard
formats. As more sources of information move to digital formats, adaptive
technologies would allow the blind to access the same amount of
information as sighted individuals at the same time.

In fact, many technology companies have expressed an interest in and have
actually designed technologies that would enable users with visual
impairment to access digital works on the same basis as those without
disabilities^[15].
For example, Adobe had formatted its eBook to be compatible with adaptive
technologies.^[16]
However, these access features have been disabled at the bidding of
publishers who claim that the feature interferes with their right to
market audio rights in their books.^[17]

However, the vast majority of books are not available as audio books or
in any other accessible format.^[18] Accessible books would therefore not be competing
with any existing product market. The blind should not be denied their
basic right of access to information to preserve a speculative profit
margin.

In order to ensure access to an array of works, the Copyright Office has
acknowledged that the blind and the visually impaired have a right to
access eBooks and has permitted them to circumvent technological
protection measures that prevent adaptive technology from working with
eBooks.^[19] The
Office should recommend to WIPO adoption of similar provisions that call
for exemptions in domestic laws of member states that will permit
circumvention of technological protection measures that prevent adaptive
technologies from working with works in standard format. In fact, such
exemptions should be permanent rather than being based on a U.S.-style
renewable exemption. In this regard, Public Knowledge endorses Article 6
of the World Blind Union's proposal.^[20]

By advocating for these changes, we are not suggesting that the Copyright
Office should not consider other means to increase access. Many have
suggested co-ordination and better harnessing of the abilities of trusted
intermediaries, such as libraries, to make works accessible^[21]. These measures may
indeed increase access to works. Yet use of trusted intermediaries may
create delays in creating licensing schemes and ensuring access to all
works to which sighted people have access. Rather than relying upon sui
generis works adapted for the visually impaired, adaptive technologies
create the possibility that any digital work could be read by the blind.
Therefore, trusted intermediaries, or any other means to increase access
should not be viewed as the sole solution. Rather, the Copyright Office
should advocate for all creative solutions, including facilitating the
use of adaptive technologies as discussed above.

2. The Copyright Office should advocate for harmonized international legal
standards that would facilitate exporting accessible copies from the U.S.
to other countries

Representatives of the blind and visually impaired explain that the
ability to move accessible copies, and the intermediate copies made in
the course of their preparation, across jurisdictions would reduce the
cost of providing access to these works.^[22] However, laws of many countries prevent
importation of copies of works made without permission of the copyright
owner.^[23]
Because most accessible copies are made under exceptions to copyright
rights and not with the permission of the rights holder, often
exportation or importation of these copies are considered
illegal.^[24]

Organizations in the U.S. have vast collections of accessible
material^[25] and
organizations in a number of countries have expressed concern about their
inability to import these copies. In a world where only 5% of published
books are available to the blind or visually impaired in accessible
formats^[26],
facilitating greater access to the collections in the U.S. and other
developed countries would improve the situation for the visually
impaired. In order to accomplish this, the Copyright Office should
advocate for a change in copyright laws in other countries to facilitate
easier importation of these copies. To the extent that there is doubt
whether accessible copies can be exported from the United
States,^[27] the
law should be clarified to state that exportation of accessible copies is
permitted.^[28]

Conclusion

The foregoing comments suggest a few solutions to problems faced by the
blind and visually impaired in accessing literary works. The problems of
access to copyrighted works however extend beyond literary works to other
works such as audio visual works, which also deserve to be addressed. In
seeking these comments, the Copyright Office has initiated a process
which we hope will result in solutions to the problems faced by the blind
and visually disabled.

Respectfully Submitted,

Rashmi Rangnath
Staff Attorney
rrangnath@publicknowledge.org

Public Knowledge
1875 Connecticut Ave. NW Suite 650
Washington, D.C. 20009
(202) 518-0020

[1] Francisco Javier
Martínez Calvo, Technological Advances Benefiting Visually
Impaired People, p.5, (English version by Margaret Clark) (November
3, 2003),
http://www.wipo.int/edocs/mdocs/mdocs/en/digvi_im_03/digvi_im_03_francisco_mart_nez_calvo.pdf,
(delivered at the World Intellectual Property Organization Information
Meeting on Digital content for the Visually Impaired)

[2] See World
Intellectual Property Organization [WIPO], Standing Committee on
Copyrights and Related Rights, Study on Copyright Limitations and
Exceptions for the Visually Impaired, SCCR/15/7, (February 20, 2007)
(prepared by Judith Sullivan), http://www.wipo.int/edocs/mdocs/copyright/en/sccr_15/sccr_15_7.pdf
[hereinafter Study on Copyright Limitations and Exceptions].

[3] Calvo, supra, note
1, at 2-3.

[4] 17 U.S.C. § 121 (2007)

[5] Study on Copyright
Limitations and Exceptions, Supra, note 2, at 72.

[6] Study on Copyright
Limitations and Exceptions, Supra, note 2, at 70 and 119.

[7] Id. at 60-62

[8] Braille is a
reading-writing system using relief characters for blind people, based on
the sense of touch. Calvo, Supra, note 1, at 3.

[9] Sound recordings normally
read by a narrator. Id.

[10] Id.

[11] Id.

[12] World Intellectual
Property Organization [WIPO], Standing Committee on Copyrights and
Related Rights, Automated Rights Management Systems and Copyright
Limitations and Exceptions, at 32, SCCR/14/5, (April 27, 2006)
(prepared by Nic Garnett), http://www.wipo.int/edocs/mdocs/copyright/en/sccr_14/sccr_14_5.pdf.
[hereinafter Automated Rights Management Systems]

[13] Calvo, Supra
note 1, at 2.

[14] Automated Rights
Management Systems, Supra note 12, at 31.

[15] Id, at 29-33.

[16] Id, at 29.

[17] Automated Rights
Management Systems, Supra note 12, at 32.

[18] Id. at 32-33.

[19] Library of Congress,
Copyright Office, Recommendation Of The Register Of Copyrights In RM
2002-4; Rulemaking On Exemptions From Prohibition On Circumvention Of
Copyright Protection Systems For Access Control Technologies 64-82
(2003), http://www.copyright.gov/1201/docs/registers-recommendation.pdf

[20] World Blind Union
Proposal, WIPO Treaty for Improved Access for Blind, Visually Impaired
and Other Reading Disabled Persons, (Draft October 16, 2008), http://www.daisy.org/news/news_detail.shtml?NewsId=458,
(follow hyperlink “DAISY 2.02; then click on
“content.html”).

[21] Study on Copyright
Limitations and Exceptions, Supra note 2, at 123-125.

[22] Id, at 74 and
119.

[23] Id, at 60.

[24] Id.

[25] Study on Copyright
Limitations and Exceptions, Supra note 2, at 77, 79.

[26] Calvo, Supra
note 1, at 3.

[27] Id, at 78
(explaining that the Recording for the Blind and Dyslexic (RFB&D), a
U.S. educational library hosting a significant collection of recorded
textbooks, has been advised that it cannot export these books under
existing U.S. law).

[28]