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Mark Richert, Esq. is the Director of Public Policy at the American Foundation for the Blind. He will be part of an expert panel at a free Public Knowledge luncheon this Thursday, entitled “DMCA Reform: Lessons from the Copyright Office’s Triennial Review.” Click here to learn more and RSVP.
At the American Foundation for the Blind (AFB), we have worked for nearly a century to break down societal barriers and eliminate discrimination by achieving equal access to the world of copyrighted works. But for all the promise of technology to provide equal access to copyrighted works, the copyright laws that protect those works have sometimes served to impede that technology.
In 1996, Congress enacted the Chafee Amendment to the Copyright Act in an effort to overcome what the National Library Service called “significant” delays in obtaining permission from copyright holders to create braille and other alternate-format versions of books. The Chafee Amendment reinforced Congress’s and the Supreme Court’s long-standing views that efforts to make copyrighted works accessible is a non-infringing fair use.
But just a couple years later, the first electronic book readers were released, and the ebook revolution was born, spawning with it a generation of books delivered with digital locks, or digital rights management (DRM) technology. Along with ebooks came the Digital Millennium Copyright Act (DMCA) and its anti-circumvention measures, which cast the circumvention of digital locks into legal doubt, even for the explicitly non-infringing purpose of making a book accessible to a person who is blind or visually impaired.
The DMCA made the type of accessibility efforts Congress had sought to enable in the Chafee Amendment effectively illegal for digital books and other digital copyrighted works. The DMCA’s triennial review process left the door open, however, for people with disabilities to ask for exemptions to the DMCA. Section 1201 of the DMCA allows parties to petition the Copyright Office for exemptions to the law every three years.
So in 2002, we joined other advocates for the blind and petitioned the Library of Congress—in the twenty-first century, in America—for permission to read books. While the Library granted us that permission through an exemption from the DMCA in 2003, it expired, under the DMCA’s provisions, just three years later. And so we went back, again, in the 2006 review, and sought it again.
For those keeping score, we’ve just completed our fifth rulemaking proceeding. And leading up to each of the five rulemakings, members of our staff, our colleagues, and our pro bono counsel have poured hundreds of hours of work into a lengthy bureaucratic process that requires us to document and re-document the accessibility of copyrighted works, and argue and re-argue the rarely-disputed premise that making books and movies accessible to people with disabilities does not infringe or even remotely threaten the rights of copyright holders. Section 1201 has forced us to strain our limited resources simply to achieve the human and civil right to access digital copyrighted works on equal terms.
Yes, our exemption was yet again granted in 2015, but our victory will be short-lived, as we will have to start the process all over again very soon, before the exemption expires in three years. While we were relieved in 2015 to see the Librarian of Congress adopt the Copyright Office's recommendation to once again recognize a DMCA exemption that allows people with vision loss to read their lawfully obtained books, there is something fundamentally wrong with a process that makes people who are blind or visually impaired have to, over and over again, beg for protection from potentially significant civil and criminal penalties, just for finding a way to access books they have a right to read.
Consumers shouldn't be on the hook for needing to repeatedly explain themselves; our copyright law should reward those rights owners who don't shut out people with disabilities and should penalize those who do. How about we flip the script and set up a triennial process wherein rights owners have to demonstrate, to the essentially arbitrary satisfaction of the Copyright Office, that people with disabilities can fully use their works or else copyright protection in those works would be forfeited to the extent they cannot? No doubt rights owners would object to such an onerous and risky scheme fraught with uncertainty. So do we. We urge Congress to, at the very least, take action to relieve the burden of repeatedly seeking re-approval of uncontroversial exemptions like the one we must re-propose during each review.
At AFB, we believe that access to the social, cultural, economic, and participatory opportunities afforded by copyrighted books, movies, music, software, and more are profoundly important in enabling people with disabilities to access a democratic society on equal terms—particularly as those works migrate to digital distribution systems in our ever-advancing information age. It’s time for Congress to limit the negative impacts of Section 1201 on the right of people with disabilities to access those works.
Image credit: www.jisc.ac.uc