Section 121 Chafee Copyright Amendment

The following was submitted to the Op-Ed Editor of the New York Times in 2007 but not published: To: [email protected] My name is John Edwin Miller. I am a U.S. Library of Congress Certified Braille Transcriber. The U.S. Publishing, Recording, and Motion Picture industries are all plagued by unauthorized or pirated reproduction and distribution of copyrighted material. The Publishing industry has an additional concern: Under Section 121 of the U.S. Copyright Act – the so-called Chafee Amendment – groups categorized as ‘Authorized Entities’ with a ‘primary mission’ to assist persons who are blind or ‘other persons with disabilities’ are authorized to provide previously published non-dramatic literary materials to qualified disabled persons exempt from copyright and without payment to the copyright owner. Qualifying a person under Section 121(c)(2) is becoming much like obtaining a Handicapped Parking placard for your car: If a Doctor or other specified person is willing to say that you have either a vision related or physical disability (such as being unable to hold a book, turn pages, or hold one’s head in a steady position) that prevents you from accessing print material as purchased from a bookstore or online, then you can qualify. The special predicament for the Publishing industry is that nearly 60 million Americans, according to 2000 U.S. census data, could in theory qualify for this copyright exemption. The Chafee Amendment also says in Section 121 (c)(3) that only certain ‘specialized formats’ qualify for this exemption and that these formats must be 'exclusively for use by blind or other persons with disabilities'. The only format specifically mentioned is Braille – any other format is defined only in general terms as 'audio, or digital text…' Braille is mainly used by persons who became blind at an early age. It takes years of training and only a small percentage of those who are legally blind are able to read Moby Dick in Braille. Other persons who are blind or visually impaired choose to listen to a book in a digital format for the disabled known as DAISY or the Digital Talking Book (DTB) Standard. And probably 98% or so of the 60 million Americans who in theory could claim the right to access copyrighted materials for free would prefer the DAISY or DTB format. (Note: The DAISY standard was in existence in 1996 when the Chafee Amendment was drafted but was not specifically listed as a 'specialized format'.) There is just one wrinkle here: DAISY and DTB talking book do not fit the definition of ‘specialized formats’ under the Chafee Amendment rules. And who will corroborate this seemingly absurd notion? The organization that wrote and provides the DTB standards, to which DAISY also conforms, and that organization is known as ANSI. The published standard for DTB is known as ANSI/NISO Z39.86-2005. This is what it says in part: The target population consists of blind, visually impaired, physically handicapped, learning disabled, and otherwise print-disabled readers. STRATEGY: This standard is based primarily on a variety of widely used standards and specifications, including several from the World Wide Web Consortium and the Open eBook Forum. Wherever applicable and appropriate standards or specifications existed they were used. The use of these specifications and technologies is intended to promote a

fast and consistent adoption of this standard for the target population, while encouraging its extension into mainstream use. How can DTB or DAISY be designed using 'widely used standards and specifications' and also to 'encourage extension into mainstream use' and still be exclusively for the ‘target population’ including those persons as defined under Section 121(c)(2)? The Drafters of the Chafee Amendment could have chosen the words ‘primarily’ or ‘principally’ in defining ‘specialized format’ but they did not. They used the word ‘exclusively’. This is Federal Statute and not subject to loose interpretation as to what the law, in the words of Associate Justice Scalia, ‘... ought to be’.* So the U.S. Publishing industry, which sponsored and helped write the Chafee Amendment in 1996, and which now looks at the prospect of providing 20-30% of its $25 billion in annual sales for free to persons claiming a qualified disability, may actually have a way out. They maybe can help make copyrighted materials available to a much smaller and precisely defined segment of the American population… Maybe then the population segment that actually receives materials for free and without infringement of copyright is the one the good late Senator Chafee intended to serve. * Note: Associate Justice Scalia's written opinion in Eastern 531 U.S. 57, 69 (2000)