Braille Monitor                                             October 2014

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Coming Soon, Ten Million Books: Landmark Copyright Rulings will Revolutionize Access to Books for the Blind

by Chris Danielsen

Chris DanielsenFrom the Editor: Chris Danielsen is the director of public relations for the National Federation of the Blind and is the driving force behind many of the press releases we issue to the media. He is trained as a lawyer, and we are the beneficiaries of his legal knowledge and his ability to communicate. Here is what he has to say:

On June 10, 2014, the United States Court of Appeals for the Second Circuit issued what is probably the final ruling in a case whose implications are nothing short of revolutionary. While the court's ruling in Authors Guild, et al. vs. HathiTrust, et al. may or may not have other effects on authors and the publishing industry, it will have an enormous and positive impact on one of the greatest challenges that we have historically faced as blind people: access to the printed word. As our immediate past president, Dr. Marc Maurer, said in a statement on the day the ruling was issued, the court "ruled clearly and unambiguously that libraries may provide full digital access to the books in their collections to patrons who are blind or print disabled and that providing such access is a fair use of copyrighted works under our nation's copyright laws. Among other things the ruling means that libraries need not rely on the provisions of copyright law relating specifically to access by the disabled in order to provide access to their collections for print-disabled readers. This ruling will dramatically improve the lives of blind and print-disabled Americans, allowing us access to the millions of books held by the HathiTrust Digital Library and any similar collections created in the future. The decision is a victory for the blind and print disabled, the significance of which cannot be overstated. The court's historic action hastens the day when the blind and others with print disabilities will have full access to all of the world's written knowledge."

To understand the implications of the HathiTrust case fully, it is useful to review briefly the history of access to books by the blind and where copyright law stood before the case was decided. We all know that acquiring access to books, magazines, and other published works has always been a source of frustration for blind people. Although the efforts of the United States government (primarily through the Library of Congress) and many dedicated nonprofit organizations, some of them staffed entirely by volunteers, gave us access to many publications, the process of doing so was so cumbersome and laborious that this access was extremely limited. Not only did books have to be transcribed into Braille or read aloud and recorded, but this process could begin only once the entity that planned to make the conversion had obtained the permission of the holder of the book's copyright. This meant that blind people read the latest bestseller months or even years after it originally appeared; waited until far into the school semester for accessible copies of our textbooks; and relied almost entirely on the radio or television for knowledge of current events, since we could not obtain timely access to newspapers or magazines.

In the last two decades there have been incremental but significant steps toward greater access. Computer technology has made books more accessible because they can be converted into electronic formats that blind people can use with access technology to generate Braille, large print, or audio. Hardcopy books can be scanned and fed into optical character recognition software and converted into electronic text files, or books can originate in digital form. As ebooks have moved from being a technology specifically used by blind people to a mainstream phenomenon, some (but sadly not all) ebook providers have made their products accessible to the blind. Our own NFB-NEWSLINE® service has made timely access to newspapers, magazines, and other periodicals not only possible but simple and efficient. On the copyright front the amendment to our nation's copyright laws known as the Chafee Amendment (for its champion, the late Rhode Island Senator John Chafee) eliminated the need for government entities and nonprofits serving the blind to ask for specific permission from copyright holders before producing accessible versions of published works. None of these solutions have been perfect, and blind people in the United States still have access to only around 5 percent of all of the published works produced each year. Nonetheless, the undeniable trend has been toward greater access.

Meanwhile, the trend toward digitization of the printed word has changed the mainstream publishing industry and raised significant questions about the copyright implications of converting hardcopy books into digital form. The efforts of Google, a company which is trying to make all of the world's knowledge electronically searchable and accessible, have been the most dramatic, both in its potential significance and its ability to induce sleepless nights among authors and publishers. We have this technology behemoth and a coalition of university libraries to thank for the recent court decision and all of its implications. Also, of course, the timely and effective advocacy of the National Federation of the Blind played a decisive role.

Beginning in 2004 several university libraries, including the University of Michigan, the University of California at Berkeley, Cornell, and more contracted with Google to scan all of the books in their collections. In 2008 these libraries and others who had joined the project created an entity known as the HathiTrust Digital Library (HDL) to house the digital copies of the books in their collections. The HDL now has eighty members and houses a collection of some ten million books. The HDL planned to use these digital copies of books for three purposes: to create a searchable database, to provide access for blind and print-disabled readers, and to replace the books if the physical copies held by the libraries were lost or destroyed. The Authors Guild, several individual authors, and several other domestic and foreign organizations purporting to protect the rights of authors and other copyright holders sued the HDL.

Recognizing the potential value of having access to ten million digital copies of books, the National Federation of the Blind and other organizations dedicated to providing access to the printed word for people with disabilities asked to intervene in the suit. In essence this means that we volunteered to be defendants, even though we had not been sued, so that we could advance arguments for providing the digital books to readers with print disabilities and so that the court could consider and rule upon our arguments, as well as any made by the HDL. Fortunately we were granted permission by the United States District Court for the Southern District of New York, the federal district court then hearing the case, to become part of the litigation.

The authors who sued the HDL maintained that the mass digitization of the books held by the participating university libraries violated copyright law. Our nation's copyright laws, which are specifically authorized by the United States Constitution, give authors, publishers, and other copyright holders a limited right to control certain uses of the works they produce for a limited time, currently the life of the copyright holder plus seventy years. At the end of the copyright period, if the copyright has not been renewed, a work becomes part of the public domain, which means that anyone can exercise the rights that the copyright holder once controlled. The purpose of copyright laws, however, is not solely to protect authors, musicians, and other artists or content creators; it is, as the Constitution states, to "promote science and the useful arts." The idea is that, by giving people a commercial incentive to write books, compose and perform music, and so forth, more books, music, and the like will be produced, thereby benefiting the public.

In order for this to make sense, however, the public has to be able to make use of the works that are created. Books are no good if no one reads them, nor is music beneficial unless it is heard. What our copyright laws do is allow the author, composer, artist, publisher, or other copyright holder to maintain exclusive control for the period of the copyright over the way the work is disseminated and used, and to receive compensation for the uses that he or she authorizes. Copyright holders can sell their rights (to a publisher, for example) in exchange for the purchase price plus royalties for each use of the work (e.g., each book the publisher sells), or give the rights away, but the decision rests with the copyright holder. If an author writes a book and a film producer wants to make a movie based on it, then the film producer must get the author's permission and compensate him or her for using the book in this way. When a radio station plays a musician's song, the station pays royalties to an association, which then distributes them to the musician. When the copyright runs out, of course, those who want to exploit the work are free to do so at will. This is why there is a constantly proliferating number of printed editions and film versions of the works of authors such as Charles Dickens and Jane Austen; the copyright holders left us long ago, so their works now belong to all of us.

As mentioned earlier, copyright is not unlimited. The most important exception to copyright law is a doctrine called "fair use." To oversimplify a bit, a fair use is a use of the work that is considered not to be a violation of copyright, primarily because it does not introduce a substitute for the original work into the commercial market and take away compensation to which the copyright holder is entitled. Two well-known examples of fair use are book reviews, in which the reviewer can quote passages from a book that illustrate and exemplify the reviewer's opinion of the book, and home video recording of broadcast television programs.

The doctrine of fair use has been developed by our nation's courts since its founding, and the judicial understanding of fair use was eventually incorporated into our copyright statutes in 1976. The law does not contain an exhaustive list of every use that is considered a fair use; instead, it sets forth factors that courts must consider in deciding whether a particular use is covered by the doctrine. As already mentioned, the most important of these is whether the use takes away all or part of the market for the copyright holder's work by effectively creating a substitute. Other factors include whether the use transforms a work into something other than the original (as happens, for example, when a photograph is included in a collage), and the kind of work involved. The defendants in the HathiTrust case, including the National Federation of the Blind, argued that the uses of copyrighted works in which the HDL planned to engage—including the creation of accessible copies for blind readers—fell within the fair use exception.

In a ruling issued in October of 2012, the late Judge Harold Baer, Jr. agreed that the creation of accessible digital copies for blind and print-disabled readers was a fair use. He further ruled that the libraries involved qualified as entities covered by the Chafee Amendment, because one of their primary purposes was to distribute accessible copies of books to readers with print disabilities. The ruling on fair use was significant, but the ruling on the Chafee Amendment is even more significant. Chafee entities can distribute content to anyone with a qualifying disability. Arguably under fair use the HDL can distribute accessible copies of its books only to patrons of its participating university libraries who are blind or have print disabilities. But as a Chafee entity the HDL can distribute these accessible copies to any blind or print-disabled individual in the United States.

The Authors Guild and the other plaintiffs appealed Judge Baer's ruling to the United States Court of Appeals for the Second Circuit. This is the court that issued its ruling on June 10 of this year. The Court of Appeals agreed with Judge Baer's conclusion on the question of fair use, although not with his rationale. Judge Baer had relied on the concept of transformative use, the idea that in creating digital copies that are accessible to the blind, HDL had fundamentally transformed the works. Instead, the appeals court focused on the fact that accessible copies of books do not undermine the market for the originals. The court noted that authors and publishers have traditionally deemed the market for books that are accessible to the blind to be so insignificant that they do not produce accessible versions themselves and have often foregone the royalties that they might have received from the sale of such versions. Therefore, by the publishing industry's own logic, accessible digital copies of books could not represent a threat to the market for the books.

The Court of Appeals concluded that, because it had found the generation of accessible copies to be a fair use, it need not address the question of whether the HDL was a Chafee entity. When an appeals court lets a lower court ruling stand without altering it, the lower court's ruling remains law. The appeals court allowed Judge Baer's ruling to stand as it related to the Chafee Amendment. Therefore the HDL is free to distribute accessible digital copies of the books in its collection, not only to students and faculty at its participating universities, but to blind and print-disabled individuals across the nation. Once the HDL is able to set up a mechanism to facilitate this distribution, as it has indicated it will do, blind and print-disabled Americans will have access to its ten million books. Moreover, the ruling means that other libraries can do the same with their collections.

There is a chance that the epic legal battle that has brought us to this happy outcome is not yet over. The case was sent back to the lower court for adjudication of a legal issue unrelated to our interests. Once that issue is decided, it is possible that the case could continue with an appeal ultimately reaching the United States Supreme Court. Unlike other courts, however, the Supreme Court can decide whether or not to hear the case. If it does, the National Federation of the Blind is ready to take our arguments to our nation’s highest court. There is no reason to believe that they will be any less persuasive than they have been so far. But, if no such appeal occurs or the Supreme Court decides against hearing the case, then the existing rulings, as they relate to blind and print-disabled readers, will stand. So, with very little fear of contradiction, your correspondent is happy to tell Monitor readers that they should get ready to do lots and lots of reading.

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