Accessibility and Copyright: The Chafee Amendment Allan Adler VP for Legal & Government Affairs Association of American Publishers RPAC Annual Conference May 18, 2004

What’s the Link Between Accessibility and Copyright? Disabilities can prevent some individuals from “accessing” or using copyrighted works in normal intended ways. Such individuals need copies of these works to be available in specialized formats that accommodate the particular disabilit(ies) to facilitate use. The availability of the work in specialized formats requires reproducing and distributing copies of the work, implicating rights of the copyright owner.

Obligations to Facilitate Accessibility Federal laws – such as the Americans with Disabilities Act (“ADA”), the Individuals with Disabilities Education Act (“IDEA”), and the Rehabilitation Act – basically bar discrimination against individuals based on their disabilities. These overlapping laws generally do not directly impose specific obligations on publishers, but can indirectly do so through publisher dealings with State/local education programs or other activities that receive federal financial assistance.

What is the Chafee Amendment? 1996 amendment to the Copyright Act for disabilities affecting use of printed works. Exempts certain “authorized entities” from the rights of copyright owners with respect to reproducing and distributing copies of “previously-published non-dramatic works” in “specialized formats exclusively for use by blind or other persons with disabilities.”

Purpose of the Chafee Amendment Eliminate the need to compensate or obtain permission from any copyright owners for the reproduction & distribution of copyrighted works in specialized formats. Save money and improve efficiency in the process of making copies of works available to individuals who need them in specialized formats.

Limitations of the Chafee Amendment While generally intended to expand capabilities of programs like the National Library Service for the Blind and Physically Handicapped; the American Printing House for the Blind; and Recording for the Blind and Dyslexic, the exemption is very limited. Although publishers often focus on its application to the curriculum material needs of students with disabilities, Chafee Amendment does not include any specific reference to students or education. Limitations include types of works, rights, copies and eligible beneficiaries covered.

Types of Copyrighted Works Covered Limited to “previously-published non-dramatic literary works” (e.g., no “unpublished” works). Does not cover audio-visual, musical, or dramatic works (e.g., published scripts of plays). Does not cover pictorial or graphic works, or sound recordings. Excludes “standardized, secure or norm-referenced tests and related testing material” and “computer programs” (except portions in conventional human language displayed to users in the ordinary course of use).

Types of Copyright Rights Covered Limited to “reproduction” and “distribution” rights. Does not cover “public performance,” “public display,” or “preparation of derivative works” rights.

Who is Covered as an “Authorized Entity”? Must be “nonprofit organization or governmental agency…” With “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.” Thus, despite obligations under federal disabilities laws, most educational institutions do not qualify as “authorized entities.”

Covered “Specialized Formats” Generally limited to those “exclusively for use by blind or other persons with disabilities” (defined by reference to NLS eligibility for persons who are unable to read normal printed materials due to blindness, visual disability or physical limitation). Explicitly limited to braille, audio or digital text “exclusively for use by blind or other persons with disabilities” (i.e., not “audio” playable on ordinary consumer devices or “digital text” that is ordinarily transmitted over online networks). Does not include “large print” format (competitive market exists, fueled by needs of senior citizens).

Applications of the Chafee Amendment Facilitating work of NLS, APHB and RFB&D Meeting needs of students with print disabilities on both K-12 and higher education levels. Innovative Internet-based subscription services like Bookshare.org (makes copies of scanned popular works available to eligible individuals)

The Future of the Chafee Amendment Expected to have continuing relevance for non- educational needs of persons with print disabilities. For students, inadequate foundation to serve shift away from treating narrow population of students with “print disabilities” to serving much larger population of students with “learning disabilities” and consequent demand for “universal design” of instructional materials instead of current retrofitting approach to needed accommodations. Increased reliance on digital media capabilities will also mean moving beyond “accessibility” issues to “pedagogy” issues for which Chafee Amendment is unsuited (e.g., derivative works issues).