Important Notice on Copyright Changes

On July 29, 1996, Senator John Chafee (Republican from Rhode Island) presented an amendment on the Senate floor to make permanent changes in the Copyright Act. In statements made to support the amendment, Senator Chafee said that the legislation was based on an agreement reached by the National Federation of the Blind (NFB) and the Association of American Publishers (AAP). In fact, except for the addition of a clause concerning computer programs, agreed to in advance, the text of the Chafee amendment is exactly the same as the NFB/AAP agreement. The agreement had received broad support in Congress and from all agencies and organizations affected.

The copyright amendments passed the Senate by unanimous consent on July 30 as part of a bill to appropriate funds for operating the Congress and other agencies of the Legislative Branch, including the Library of Congress. The bill was then referred to a conference committee so that provisions which the Senate had added or altered could be considered by members of the House. Although the copyright amendments had not been included in the House version, the conferees from the House readily accepted them.

On August 1, the Legislative Branch Appropriations bill was passed by the House of Representatives in its final form. It was then agreed to by the Senate on September 4. President Clinton signed the bill as Public Law 104-197 on September 16. The copyright amendments are included in this law as section 316. The provisions in this section make permanent changes in the copyright act and have taken effect upon enactment. This means the following:

(1) The permission of publishers or copyright owners is now not required if an authorized entity reproduces or distributes a nondramatic literary work in a specialized format for the exclusive use of blind persons or others with physical disabilities.

(2) An "authorized entity" refers to a nonprofit organization or governmental agency whose primary mission is to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities.

(3) "Specialized formats" include Braille, audio, or digital text exclusively for use by blind or other persons with disabilities.

(4) "Blind or other persons with disabilities" means individuals who are eligible for or can qualify to receive specialized library services under existing definitions used by the National Library Service for the Blind and Physically Handicapped of the Library of Congress and its network of cooperating libraries. Permission is no longer required from the copyright holder if reading matter is reproduced or distributed in a specialized format exclusively to members of this population.

(5) Every work which is reproduced in a specialized format must include a notice that further reproduction without permission of the copyright holder is prohibited unless the reproduction is in a specialized format. The notice must identify the copyright owner and the date of the original publication.

(6) Two types of materials"standardized tests and certain portions of computer programs" cannot be reproduced without permission. The exact language of this exception says: "The provisions of this section shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs."

The important, bottom-line result of the new legislation is that with respect to the specified specialized formats"but not with respect to other formats"the copyright permission process no longer applies. This means that the procedures and delays involved in securing copyright clearance should be gone. In the short run, this should mean much faster service for readers. As for the future, the Chafee amendment will very likely prove to be crucial as the national information infrastructure evolves.

According to Mr. Frank Kurt Cylke, Director of the National Library Service for the Blind and Physically Handicapped of the Library of Congress, the changes in the copyright law made by the Chafee amendment represent the most significant development in making reading matter available to the blind since Congress established the National Library Service program in the Library of Congress in 1931. In a letter sent to Senator Chafee on August 1, Mr. Cylke said: "I know I join Kenneth Jernigan, President Emeritus of the National Federation of the Blind, and all others in the community in extending heartfelt appreciation." As word of the Chafee amendment has begun to" circulate, Mr. Cylke's sentiments have been echoed by blind individuals and officials of agencies that serve them.

The text of section 316 of Public Law 104-197 follows:

EXCERPT FROM H.R. 3754 FISCAL YEAR 1997,
LEGISLATIVE BRANCH APPROPRIATIONS ACT

SECTION 316.

LIMITATION ON EXCLUSIVE COPYRIGHTS FOR LITERARY WORKS IN SPECIALIZED FORMAT FOR THE BLIND AND DISABLED.

(A) IN GENERAL.—Chapter 1 of title 17, United States Code, is amended by adding after section 120 the following new section:

-121. Limitation on exclusive rights: reproduction for blind or other people with disabilities.

(a) Notwithstanding the provisions of sections 106 and 710, it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, non-dramatic, literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.

(b)(1) Copies or phonorecords to which this section applies shall-

(A) not be reproduced or distributed in a format other than a specialized format exclusively for use by blind or other persons with disabilities;

(B) bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication.

(2) The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except they shall apply to portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.

(c) For purposes of this section, the term-

(1) "authorized entity" means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;

(2)"blind or other persons with disabilities" means individuals who are eligible or who may qualify in accordance with the Act entitled "An Act to provide books for the adult blind", approved March 3, 1931 (2 U.S.C. 135a; 46 Stat. 1487) to receive books and other publications produced in specialized formats; and

(3) "specialized formats" means Braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities."

(b) TECHNICAL AND CONFORMING AMENDMENT.-The table of sections for chapter 1 of title 17, United States Code, is amended by adding after the item relating to section 120 the following:

-121. Limitations on exclusive rights; reproduction for blind or other people with disabilities.-