The following is a compilation of material about changes in copyright law for people with print disabilities. ---------- Congress is considering bills to update copyright law in accordance with new circumstances of the digital age. The legislation primarily increases protections against the unauthorized transmission of works in electronic form. A significant exemption, however, is proposed to facilitate increased access to knowledge by persons with print disabilities. The challenge is to design a policy that promotes accessibility while fairly preserving intellectual property rights and competitive market incentives. As reported in the lead article of the April Braille Monitor, the National Federation of the Blind has been able to play an instrumental role in developing consensus in this area. Given the intense schedule of Congress these days, it is unclear whether this issue will be resolved in the near future. The developments in language and process, however, are instructive models on which progress may be built for people with disabilities, both in this country and others. To inform people about the issue, I am posting the following material in three sections: (1) a statement by Senator Hatch in introducing a copyright bill; (2) the current bill language related to accessibility; and (3) the Monitor article describing the advocacy process to date. Jamal Mazrui National Council on Disability Email: 74444.1076@compuserve.com ---------- Congressional Record dated Thursday, September 28, 1995 Senate Section ---------------------------------------- ---------------------------------------- Remarks by HATCH (R-UT) on S. 1284: NII Copyright Protection Act of 1995 [CR page S-14550, 137 lines] Attributed to HATCH (R-UT) By Mr. HATCH (for himself and Mr. Leahy): S. 1284. A bill to amend title 17 to adapt the copyright to the digital, networked environment of the National Information Infrastructure, and for other purposes; to the Committee on the Judiciary. THE NATIONAL INFORMATION INFRASTRUCTURE COPYRIGHT PROTECTION ACT Mr. HATCH. Mr. President, today, together with my distinguished colleague from Vermont, Senator Leahy, I am introducing the National Information Infrastructure Copyright Protection Act of 1995, which amends the Copyright Act to bring it up to date with the digital communications age. The National Information Infrastructure or "NII" is a fancy name for what is popularly known as the "information highway." Probably most people today experience the information highway by means of their computers when they use electronic mail or subscribe to a bulletin board service or use other on-line services. But these existing services are only dirt roads compared to the superhighway of information-sharing which lies ahead. The NII of the future will link not only computers, but also telephones, televisions, radios, fax machines, and more into an advanced, high-speed, interactive, broadband, digital communications system. Over this information superhighway, data, text, voice, sound, and images will travel, and their digital format will permit them not only to be viewed or heard, but also to be copied and manipulated. The digital format will also ensure that copies will be perfect reproductions, without the degradation that normally occurs today when audio and videotapes are copied. The NII has tremendous potential to improve and enhance our lives, by providing quick, economical, and high-quality access to information that educates and entertains as well as informs. When linked up to a "Global Information Infrastructure," the NII will broaden our cultural experiences, and allow American products to be more widely disseminated. Highways, of course, are meant to be used, and in order to be used, they must be safe. That's why we have "rules of the road" on our asphalt highways and that's why we need rules for our digital highway. No manufacturer would ship his or her goods on a highway if his trucks were routinely hijacked and his or her goods plundered. Likewise, no producer of intellectual property will place his or her works on the information superhighway if they are routinely pirated. We might end up having enormous access to very little information, unless we can protect property rights in intellectual works. The piracy problem is particularly acute in the digital age where perfect copies can be made quickly and cheaply. Protecting the property rights of the owners of intellectual property not only induces them to make their products available, it also encourages the creation of new products. Our copyright laws are based on the conviction that creativity increases when authors can reap benefits of their creative activity. But the NII also promises to increase creativity in a more dramatic way by providing individual creators with public distribution of their works outside traditional channels. For example, authors who have been unsuccessful in finding a publisher will be able to distribute their works themselves to great numbers of people at very low cost. The bill that I am introducing today begins the process of designing the rules of the road for the information superhighway. It was drafted by the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force. Chaired by the Honorable Bruce A Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, the Working Group labored for 2 years examining the intellectual property implications of the NII to determine if changes were necessary to intellectual property law and to recommend appropriate statutory language. The Working Group drew upon the expertise of 26 departments and agencies of the Federal Government; it heard the testimony of 30 witnesses and received some 70 written statements from all interested parties. On July 7, 1994, it produced a preliminary draft ("Green Paper"), which opened another period of extensive testimony and comment. The Final Report, containing a draft of the legislation that I am introducing today, was unveiled on September 5, 1995. The length and scope of the Working Group's investigation would alone commend its recommendations to serious attention, but I have also studied the legislation and find it an excellent basis for the Committee on the Judiciary to begin its own examination of the issues with a view to fine-tuning the solutions proposed by the Working Group. The bill deals with five major areas: (1) transmission of copies, (2) exemptions for libraries and the visually impaired, (3) copyright protection systems, (4) copyright management information, and (5) remedies. In general, the bill provides as follows: Transmission of Copies. The bill makes clear that the right of public distribution in the Copyright Act applies to transmission of copies and phonorecords of copyrighted works. For example, this means that transmitting a copy of a computer program from one computer to ten other computers without permission of the copyright owner would ordinarily be an infringement. Exemptions for Libraries and the Visually Impaired. The bill amends the current exemption for libraries to allow the preparation of three copies of works in digital format, and it authorizes the making of a limited number of digital copies by libraries and archives for purposes of preservation. The bill adds a new exemption for non-profit organizations to reproduce and distribute to the visually impaired--at cost--Braille, large type, audio or other editions of previously published literary works, provided that the owner of the exclusive right to distribute the work in the United States has not entered the market for such editions during the first year following first publication. Copyright Protection Systems. The bill adds a new section which prohibits the importation, manufacture or distribution of any device or product, or the provision of any service, the primary purpose or effect of which is to deactivate any technological protections which prevent or inhibit the violation of exclusive rights under the copyright law. Copyright Management Information. "Copyright management information" is information that identifies the author of the work, the copyright owner, the terms and conditions for uses of the work, and other information that the Register of Copyrights may prescribe. The bill prohibits the dissemination of copyright management information known to be false and the unauthorized removal or alteration of copyright management information. Remedies. The bill provides for civil penalties for circumvention of copyright protection systems and for tampering with copyright management information, including injunction, impoundment, actual or statutory damages, costs, attorney's fees, and the modification or destruction of products and devices. The bill provides criminal penalties for tampering with copyright management information--a fine of not more than $500,000 or imprisonment of not more than 5 years or both. There is widespread support for the general thrust of the bill among interested parties. However, during the hearing process, I am sure that issues will arise that no one has yet anticipated. Already, some potential discussion points have been identified: the scope of the library exemption and the exemption for the visually impaired, the absence of criminal penalties for circumvention of copyright protection systems, the use of encryption as a copyright protection system, the application of the doctrine of fair use, the development of efficient licensing models, and the liability of on-line service providers. In the interest of time, it may be that fuller discussion and solution may have to be deferred for those points not covered expressly in the bill. The fully commercial information superhighway is not yet here, and we must resign ourselves to a period of experimentation. We want to be on the cutting edge, not the bleeding edge of new technology. Once again, I would like to commend the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force for providing an excellent model for us to work with. I also recommend to all interested parties that they read the full report of the Working Group. Without endorsing any of the specific language of that report, I believe that it provides useful background material for the recommended changes. In conclusion, Mr. President, I would like to thank my colleague from Vermont, Senator Leahy, for joining me in introducing this important legislation. ---------- EXCERPT FROM S1284 RELATED TO ACCESSIBILITY (b) Visually Impaired.--Title 17, United States Code, is amended by adding the following new section: "Sec. 108A. Limitations on exclusive rights: Reproduction for the Visually Impaired "Notwithstanding the provision of section 106, it is not an infringement of copyright for a non-profit organization to reproduce and distribute to the visually impaired, at cost, a Braille, large type, audio or other edition of a previously published literary work in a form intended to be perceived by the visually impaired, provided that, during a period of at least one year after the first publication of a standard edition of such work in the United States, the owner of the exclusive right to distribute such work in the United States has not entered the market for editions intended to be perceived by the visually impaired.". ---------- AN ARTICLE FROM THE APRIL 1996 BRAILLE MONITOR Published by the National Federation of the Blind MAJOR ADVANCE IN COPYRIGHT CLEARANCE by Kenneth Jernigan At a meeting held on January 25, 1996, at the National Center for the Blind in Baltimore, a significant breakthrough occurred with respect to copyright clearance for reading matter for the blind. Present at the meeting were the following top officials of the Association of American Publishers (AAP)--Former Ambassador to Egypt and Jordan, Nicholas Veliotes, AAP President; Carol Risher, AAP Vice President of Copyright and New Technology; and Rick Blake, Vice President of the School Division. Also present were Frank Kurt Cylke and Ruth Foss of the National Library Service for the Blind and Physically Handicapped of the Library of Congress and representatives of the National Federation of the Blind. After several hours of discussion and negotiation, complete agreement was reached. The occasion was truly historic in nature--and so also, we believe, will be the consequences and resulting partnership between NFB and AAP. There have always been difficulties in copyright clearance for reading matter for the blind, but the problems have largely revolved about the mechanics of the process. The present law requires that permission be sought on a book-by-book and item-by- item basis for anything that is to be recorded or put into Braille for use by the blind, and this is an expensive and time- consuming procedure. Sometimes the publisher has the power to grant permission; sometimes it is the author; and sometimes the power is jointly shared. If a book contains stories or chapters by different authors, the situation may be further complicated. This can mean delays of many months, as well as the outlay of a great deal of money and time. In a few instances permission is denied altogether. And what about digital formats? They are increasingly important because of the Internet and the proliferation of computers. In fact, electronic production and distribution of reading matter is taking the center of the stage, and the blind must not be left out. One way to achieve this is to simplify and regularize copyright clearance--and not just for Braille and recorded matter but also for digital. Shortly after taking office, the Clinton Administration began to explore changes in the copyright law as part of broader considerations involving the Internet. The Department of Commerce was chosen to spearhead the effort, and in July of 1994 it issued what was called a "green paper" on the matter. As a follow-up the Department of Commerce held hearings and then began to convene monthly meetings of an Information Infrastructure Task Force to consider copyright and other items. Next, in September of 1995, came what was called a "white paper," to distill what had been learned and to propose legislation--H. R. 2441 and Senate Bill 1284. These bills undertook to address the copyright concerns of the blind, but they had (and still have unless amended) serious disadvantages. In fact, if adopted as introduced, they might leave us worse off than we now are. They provide that a literary work (see definition later in this article) has copyright clearance to be published in a special format for use by the visually impaired if the publisher or copyright holder of that work has not entered the market within one year after its publication to produce it commercially in an accessible format. This would almost certainly mean even more delays than we now have, and it also leaves the question open as to what is meant by "entering the market." Moreover, it raises other questions. If a copyright holder produces a book in large print (which is certainly accessible to certain people who are visually impaired), does that preclude its publication in audio format? And if it is published in both large print and audio, what about Braille? And, to come to modern technology, what about digital? Of course, even if these bills pass as now written, nothing prevents the Library of Congress or a private organization from requesting permission to produce a given book or article in Braille or some other format--but the reality is that the delays and complications would effectively make production very nearly impossible. At a joint House/Senate hearing last November, government agencies were permitted to testify, but the private sector was not. It was made clear that private-sector organizations would have an opportunity at a later date and that these might not be joint hearings. The promised hearings were held before the Subcommittee on Courts and Intellectual Property of the House Judiciary Committee on February 8, 1996. The Senate may or may not hold such hearings at a later time. Feeling that this climate of investigation and reexamination of the copyright law offered not only a threat but also an opportunity, the NFB and others in the blindness field began to take action as soon as the Clinton administration initiative was commenced. A number of groups and individuals participated in lower-level discussions with various representatives of the Association of American Publishers (AAP) and with federal agencies. NFB also talked with members of Congress. Then the chance for the breakthrough came. As has already been said, the president of the AAP and two of his top-level colleagues came to the National Center for the Blind on January 25 of this year, and after a day of discussion and negotiation, the agreement was reached. Prior to the visit of Ambassador Veliotes and his team, the NFB had prepared a proposal. Its language served as the framework for the negotiations and was, with minor changes, accepted as the final document. Certain terms in the text require explanation. As is usual when dealing with federal laws and regulations, words often have special or unusual meanings. Here from the United States Code Title 17, Section 101, are a few definitions that are part of the current law and might be misleading if not understood according to appropriate federalese. These definitions carry forward into the proposed bills and amendments: "Literary works" are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied. "Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, whether directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed. "Phonorecords" are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed. These are the relevant definitions. To put it plainly, phonorecords means anything that is recorded by whatever means, either now or in the future, and copies means everything else, produced by either present or future technology. With that out of the way and with the added reminder that section 135a of Title 2 refers to the Library of Congress books for the blind and physically handicapped program, let us look at the document which the publishers and the Federation agreed to. Here it is exactly as the publishers submitted it to Congress as part of their written statement: NFB Proposal Amendment Proposed to H. R. 2441/S. 1284 (a) On Page 2, line 18, strike "visually impaired" and insert in lieu thereof "blind or other persons with disabilities." (b) On Page 3, line 13, strike "visually impaired" and insert in lieu thereof "blind or other persons with disabilities." (c) On Page 3, strike the text beginning on line 15 through line 2 on Page 4, and insert the following: Section 108A. Limitations on exclusive rights: Reproduction for blind or other persons with disabilities (A) "Notwithstanding the provisions of sections 106 and 710, it is not an infringement of copyright for an authorized entity as defined in this section to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities as defined in this section. (B) As used in this section, the term-- (1) "authorized entity" means a nonprofit organization or a 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; (2) "specialized formats" means Braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities; and (3) "blind or other persons with disabilities" means individuals who are eligible or may qualify in accordance with section 135a of Title 2, United States Code, to receive books and other publications produced in specialized formats. (C) Copies or phonorecords made under this section-- (1) Shall not be reproduced or distributed in a format other than a specialized format exclusively for use by blind or other persons with disabilities, and any copies or phonorecords made under this section shall bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement; and (2) shall include a copyright notice identifying the copyright owner and the date of the original publication. (D) The provisions of this section shall not apply to standardized, secure, or norm-referenced tests and related testing material. This is the language upon which we agreed, and as might be imagined, there was a good deal of give-and-take. The most difficult part of the negotiations involved reproduction and distribution in digital format. However, at the end of the day there were both harmony and total accord. Ambassador Veliotes said that he would talk with the publishers to confirm their agreement, and I said that the Federation would contact the principal organizations in the blindness field. This was done; everybody thought we should go forward; and so we came to the Congressional hearing on February 8, 1996. In the panel that concerned us, the first person to testify was Jeanne Simon, the wife of Senator Paul Simon. She spoke on behalf of the United States National Commission on Libraries and Information Science, and what she said did not involve our proposed amendment. The next person to testify was Dr. Tuck Tinsley, head of the American Printing House for the Blind. He said in part: The substitute language for the new section 108A proposed by the National Federation of the Blind, the Association of American Publishers, and the Library of Congress will greatly assist with the provision of educational materials to blind students at the same time the materials are available to their sighted peers. This amendment will provide long-overdue enrichment to the lives of blind students. It is time to put an end to the unintended effect that copyright has of censoring blind students' access to current ideas, information, and educational resources. On behalf of all of the legally blind student population of our country, the American Printing House for the Blind salutes the Association of American Publishers for going to the National Federation of the Blind and working toward language for section 108A which is beneficial to all. Next came the AAP. Testifying for them was Richard (Dick) Robinson, who is Chairman, President, and C.E.O. of the Scholastic Corporation, the largest publisher of children's books in the world. Toward the end of his speech he said: In closing let me briefly touch on several points which seem relevant to what [the] other panel members have said. First, I want to emphasize the satisfaction of AAP and its members in being able to reach agreement through cooperative efforts with representatives of the blind community and the copyright office on proposed revisions to those sections of the bill concerning access for the blind to published materials in digital form. Dr. Tinsley expressed this very beautifully a few moments ago--and thank you for your real support of us since we feel very close to you on this issue, and thanks for that. In addition to his oral testimony, Mr. Robinson presented a written statement. Attached to it was the agreed-upon proposal exactly as printed here. At the conclusion of the formal testimony, Congressman Moorhead, who chairs the Subcommittee, asked Jim Gashel, Director of Governmental Affairs for the National Federation of the Blind, to come to the witness table and participate. He asked Mr. Gashel to state for the record the advantages of our proposed amendment, and Mr. Gashel did so. In answer to a question from Chairman Moorhead as to whether there was any disagreement on the proposed section, Dr. Tinsley said: "The new section 108A as agreed upon by AAP, the Library of Congress, and NFB is very satisfactory. It puts us miles ahead of where we were." In response to a question from Congressman Goodlatte as to the effect of our proposed amendment, Dr. Tinsley said: "The Library of Congress doesn't pursue anthologies because of the number of permissions for them to provide it in Braille. We [at APH] do for the classroom. However, it has taken us up to a year and a half to get all the permissions for several of the books. And for some we just can't get all of the permissions from all of the authors, so this [amendment] should really help." Although some of the provisions of H. R. 2441 and S. 1284 are controversial, there is every reason to believe the bill will pass. There is no controversy concerning our amendment. The hearings and the negotiations leading up to them have to be counted as a significant milestone on the road to the availability of accessible reading matter for the blind. The approach and the crafting of the language were unique to the particular negotiations, not being duplicated by others. As has already been said, they constitute a truly historic breakthrough. Since the hearings a number of letters and communications have been received expressing commendation of the Federation's work and the writer's satisfaction with the progress. Here are three that Monitor readers may find interesting. The first comes from Ritchie Geisel, President of RFB&D, formerly Recording For the Blind. The second comes from Dr. Tuck Tinsley, President of the American Printing House for the Blind, and the third comes from the Washington office of the American Council of the Blind over the signature of ACB President Paul Edwards: [#1 PHOTO/CAPTION: Ritchie Geisel] Recording for the Blind & Dyslexic Princeton, New Jersey February 15, 1996 Dear Dr. Jernigan: I thought you should have a copy of RFB&D's written statement on the "NII [National Information Infrastructure] Copyright Protection Act of 1995." Our support of the NFB-AAP amendments is clearly reflected in this statement. All that I want to add is our sincere appreciation for the leadership role you exercised in bringing about this unprecedented agreement among all the interested stakeholders. With kind regards, Ritchie L. Geisel President __________________ [#2 PHOTO/CAPTION: Tuck Tinsley] American Printing House for the Blind Louisville, Kentucky February 26, 1996 Dear Dr. Jernigan: The purpose of this letter is twofold. That is, to congratulate and to thank NFB and you personally for great leadership in working with the Association of American Publishers and the Library of Congress to reach agreement on new language for Section 108A of the Copyright Act, "Limitations for exclusive rights: Reproduction for blind or other persons with disabilities." Obtaining permissions from publishers to reproduce materials for the blind has been a time-consuming and frustrating endeavor since the first United States Copyright Statute was passed in 1790. It has been a major focus at APH for the entire 138 years of our existence. Various individuals, work groups, committees representing publishers, interagency task forces, and even the Administrative Work Group of the current administration have invested much time and energy in an activity which you were able to pull together in a single day. The messages are clear: 1) to make things happen, the right people must be involved, 2) the influence of NFB is great, and 3) most significantly, the involvement of consumers is absolutely essential in any activity to influence public law or opinion. On behalf of the American Printing House for the Blind and the legally blind pre-college level student population of our country, I salute the National Federation of the Blind for spearheading the development of new language for the Copyright Act which will be beneficial to all. Sincerely, Tuck Tinsley III, Ed.D. President ___________________ [#3 PHOTO/CAPTION: Paul Edwards] American Council of the Blind Washington, D. C. February 20, 1996 Dear Ken: ACB has reviewed the language proposed by the American Publishers Association to amend the Copyright Act to permit the reproduction and distribution of materials in accessible formats for blind and other print-handicapped individuals. We find that the language proposed is substantially similar to language crafted by others working on this issue, and it is our understanding that the approach taken by APA will, for the most part, satisfactorily address the needs of those entities which produce accessible literary works. It is our hope that this amendment to the Copyright Act will greatly improve information access for blind people by removing the barriers now associated with obtaining permission to reproduce works in accessible formats. Accordingly, ACB will work to promote acceptance of this amendment in Congress. Thank you for your contribution to this important effort. Sincerely, Paul Edwards President ____________________ National Federation of the Blind Baltimore, Maryland February 21, 1996 Dear Paul: Your letter of February 20, 1996, concerning the copyright language developed by NFB and the Association of American Publishers will be widely shared with others. It should be of great use, and I thank you for it. Sincerely, Kenneth Jernigan President Emeritus [#4 PHOTO/CAPTION: James Gashel] STATEMENT OF THE NATIONAL FEDERATION OF THE BLIND From the Editor: The following testimony was submitted on February 8, 1996 by the National Federation of the Blind to the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, United States House of Representatives. Mr. Chairman, my name is James Gashel. I am the Director of Governmental Affairs for the National Federation of the Blind. My address is 1800 Johnson Street, Baltimore, Maryland 21230; telephone, (410) 659-9314. The National Federation of the Blind appreciates very much the significance of the pending copyright legislation being considered by this Subcommittee, and we thank you for the opportunity to take part in this hearing today. Before I turn specifically to the copyright bill, I would like to say just a word of introduction about the purpose of the National Federation of the Blind and our particular interest in this legislation. The Federation is a membership organization of blind people. I emphasize the use of the word "of" in our name because blind people themselves have joined together to form the Federation. This is why we are often referred to as the "voice of the nation's blind." Our interest in publishing and copyright springs from the fact that most of the activities in this area are carried on in the print media. Printed text and graphical or pictorial representations are, by their very nature, not directly usable by blind people. It should be obvious that this presents us with a significant barrier which must be overcome if blind people are to be informed and literate. It is not too much to say that living successfully in our modern society often depends upon being able to communicate ideas and facts both orally and in writing. Therefore, if the blind people of today and tomorrow are going to compete with others on terms of equality--something which we can certainly do--we must have suitable alternatives to standard print. The amendments to the Copyright Act now before you in the form of H. R. 2441 give recognition to what I am saying. Section 3 of the bill proposes to establish a new limitation on the exclusive rights of copyright owners which would apply to the reproduction and distribution of nondramatic literary works in formats which blind and visually impaired people can use. The provision would allow a nonprofit agency to reproduce and distribute an otherwise copyrighted work without regard to section 106 of Title 17, United States Code. For example, it would not be a copyright infringement under this section for a nonprofit agency to convert a printed, published work into Braille without first asking for permission and waiting to receive it. Obviously that would be an advantage. However, the present language of section 3 may well have been crafted without complete knowledge of how the present copyright clearance system works. Nonetheless, the provision as written has done us a great service by kicking off a discussion of how best to get more reading matter more quickly into the hands of blind people while protecting the copyright owners' interests. The problems and promise of section 3 in its present formulation were described quite succinctly (and quite accurately) in testimony already presented by Mary Beth Peters, Register of Copyrights at the Library of Congress. As she noted in her statement, there is certainly a need for the one-year delay proviso to be re-examined. The limitation should specifically permit reproduction and distribution of digital text; governmental as well as nonprofit agencies should be authorized to use the limitation; and the reader population-- blind and visually impaired persons--should be clearly defined. As it turns out, the issues which Ms. Peters identified were also of concern to the National Federation of the Blind. So, rather than waiting for someone else to act, we decided to take up the challenge. Actually we have been conducting fairly frequent discussions with the publishers, via the Association of American Publishers (AAP). At a meeting of leaders from our respective organizations held on Thursday, January 25, at the headquarters of the National Federation of the Blind in Baltimore, we reached an agreement. This agreement in the form of legislative language is appended to this statement. A memorandum from AAP'S president, Ambassador Nicholas Veliotes, confirming our agreement is also appended. I should note that Mr. Frank Kurt Cylke, Director of the National Library Service for the Blind and Physically Handicapped of the Library of Congress, was also a participant in the discussions with the publishers. The Library of Congress coordinates the major book production and distribution service through which most blind people obtain reading matter. Mr. Cylke and his staff at the Library have extensive experience and almost daily interaction with book publishers to obtain permission under the present copyright law. Therefore, his involvement along with the publishers' was essential. While the National Federation of the Blind has taken the lead in forging the specifics of an agreement with the AAP, I have been advised that agencies such as Recording for the Blind and Dyslexic and the American Printing House for the Blind are fully in accord with the recommended language. It is important to note that these two agencies, along with the Library of Congress, reproduce and distribute much of the reading matter which blind people (both children and adults) receive. I would like briefly to describe the specific terms of our agreement. It is essentially a proposal to rewrite section 3(b) of H. R. 2441, although it could be advanced on its own as a free-standing bill. In the rewrite the term "blind and visually impaired" would be changed to "blind and other persons with disabilities." The significance of this change comes in the definitions, which I will shortly discuss. Subsection A of our proposal would allow authorized entities, as we define them later, to reproduce or distribute copies or phonorecords of previously published, nondramatic literary works in specialized formats, as later defined, for exclusive use by blind or other persons with disabilities. Under this subsection it would not be an infringement of copyright for the Library of Congress or the American Printing House for the Blind, for example, to proceed immediately with the conversion of a printed book into Braille as soon as they could feasibly arrange to do so. This section would not require copyright permission and would therefore avoid the lengthy waiting time that is often involved. Subsection B of our proposal contains three definitions which all of us view as critical. The first of these defines "authorized entity" as a nonprofit or governmental agency with a primary mission of serving blind or other persons with disabilities in regard to training, education, or adaptive reading or information-access needs. "Specialized formats" are defined as Braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities. The term "blind or other persons with disabilities" has also been carefully defined. To do this, we have followed the recommendation of the Register of Copyrights. As a result the definition used in our proposal provides a cross-reference to section 135A of Title 2 of the United States Code. This is the definition used for eligibility to receive special reading matter through the Library of Congress program. All libraries and agencies that cooperate with the National Library Service for the Blind and Physically Handicapped of the Library of Congress use the definition from Title 2, section 135A, to define the eligible population. Mr. Cylke has informed us that 500,000 individuals presently receive services through the Library of Congress network of specialized libraries for the blind and physically handicapped. The definition of eligibility in Title 2, section 135A, has existed in its present form for thirty years. Even so, the population of eligible readers remains quite constant. However, it is estimated that as many as three million people in the United States could qualify under the definition now in use for library service. Those who could and do qualify are individuals who have physical disabilities (mostly blindness) that prevent them from using printed works. In order to qualify in accordance with the existing definition, a person like me must be certified by a competent authority as meeting the physical or visual criteria for eligibility. I think it is clear that we--those of us who qualify for service under this definition--are not buyers of print books because we cannot actually use them for the most part. In fact, I don't recall having ever bought a print book except as a gift for a sighted friend or family member. If I could see, I would very likely be spending considerable sums in bookstores. My personal situation is quite representative. The publishers have recognized this and have therefore agreed that we should have the right to receive editions of published works in specialized formats. The publishers appear to view the use of the existing definition of our eligible population as critical to the agreement we have reached. Since the eligible population is already defined by law, we too are content to use it. As I understand it, all of the affected agencies and groups in our field agree with this. Subsections C and D of our agreement contain provisions which should help to safeguard the rights of copyright holders. The first of these prohibits republication of a work in a format other than a specialized format and requires that each copy made in a specialized format contain a notice of this prohibition. Also copies that are made in specialized formats must identify the copyright owner and the date of the original publication. Finally, reproduction or distribution of standardized, secure, or norm-referenced tests or testing material would continue to be a copyright infringement. Laws other than the copyright law already require such tests to be provided in formats that do not discriminate on grounds of blindness or disability. As I think you can tell from this description, Mr. Chairman, the agreement which the publishers have reached with us is both balanced and fair to everyone concerned. We view this as a win-win outcome. Hopefully it can provide the impetus for constructive action in other matters of concern in this bill. Whether that can happen or not, we certainly recommend the provisions I have outlined and urge you to report them promptly to the full committee. On behalf of the National Federation of the Blind, I thank you for the opportunity to present this testimony. Speaking as someone who would benefit greatly from the recommended changes in the Copyright Act and speaking on behalf of all blind people, I am really asking for the chance to learn and have timely access to knowledge. Of the 40,000 books that are published in the English language annually, only about 5 percent are made available to us. The amendments to the Copyright Act will not alone balance the scales, but the changes will certainly help. Therefore, we ask you to move forward with this and thank you for the opportunity to be heard. ---------- July 18, 1996 Dear Colleague: Most of us take for granted our ability to browse through the neighborhood library or a corner bookstore, searching for titles from Bestseller lists. For an estimated two million Americans with blindness or visual impairments this sort of activity is impossible. =20 The Library of Congress operates a small program that makes an enormous difference in the lives of blind and disabled Americans. This program, known as National Library Service for the Blind and Physically Handicapped, provides full length books and magazines in Braille and "Talking Book" formats to individuals who would otherwise be cut off from published material. NLS selects, produces, and makes available to eligible individuals a wide range of published material. Current law requires NLS, and a handful of organizations with a similar mission, to receive permission from either the publisher or the author before production can begin. Regrettably, this process is often lengthy and cumbersome, delaying production for up to a year. James Gashel, the Director of Governmental Affairs for the National Federation of the Blind, put it this way: "In a society whose members increasingly depend upon access to information for successful living, blind people cannot afford to endure a growing gap in access to knowledge." We plan to introduce legislation endorsed by the National Federation of the Blind, the Association of American Publishers and the U.S. Copyright Office that would amend the Copyright Act to solve this problem. A copy of the proposed legislation is enclosed. You may be pleased to know that this proposal has no budgetary impact, and we believe it is completely non- controversial. We hope to introduce this bill next week and would appreciate your cosponsorship. If you have questions about the bill or would like to be listed as a cosponsor, please contact Barbara Riehle at 224-2921. Sincerely, ---------- Senator John Chafee has introduced an amendment to the FY97 legislative appropriations bill that would facilitate more extensive and timely production of accessible formats for people with print disabilities. The following excerpt from the Congressional Record provides the text of the amendment and his explanatory remarks. Jamal Mazrui National Council on Disability Email: 74444.1076@compuserve.com ---------- Congressional Record dated Monday, July 29, 1996 Senate Section ---------------------------------------- ---------------------------------------- Text of Amendment Offered by CHAFEE (R-RI) to H.R. 3754 AMENDMENT NO. 5119 (Purpose: To amend chapter 1 of title 17, United States Code, to provide for a limitation on the exclusive copyrights of literary works produced or distributed in specialized formats for use by blind or disabled persons, and for other purposes) Attributed to CHAFEE (R-RI) AMENDMENT NO. 5119 (Purpose: To amend chapter 1 of title 17, United States Code, to provide for a limitation on the exclusive copyrights of literary works produced or distributed in specialized formats for use by blind or disabled persons, and for other purposes) Mr. CHAFEE. Mr. President, on behalf of myself, and Senators Frahm, Stevens, Leahy, McConnell, and Bingaman, I send a printed amendment to the desk. At the proper time I will ask that it be set aside. The PRESIDING OFFICER. The clerk will report. The assistant legislative clerk read as follows: The Senator from Rhode Island (Mr. Chafee), for himself, Mrs. Frahm, Mr. Stevens, Mr. Leahy, Mr. McConnell, and Mr. Bingaman, proposes an amendment numbered 5119. Mr. CHAFEE. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: At the appropriate place in the bill insert the following new section: SEC. . 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: "Sec. 121. Limitations 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, nondramatic 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 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. "(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.". ---------------------------------------- Measure Debated by CHAFEE (R-RI) and 3 others -- H.R. 3754 Congressional Operations Appropriations Act, 1997 Mr. CHAFEE. Mr. President, this is an amendment that I am offering on behalf of myself and those Senators that I just listed. This amendment is supported by the Association of American Publishers, the National Federation of the Blind, the American Foundation for the Blind, the American Printing House for the Blind, Recording for the Blind and Dyslexic, and the U.S. Copyright Office. It also has the support of the chairman of the Judiciary Committee, and we are waiting for approval by the ranking member of the Judiciary Committee before proceeding. Mr. President, the amendment I am proposing along with those Senators I mentioned is an amendment to the legislative branch appropriations bill regarding books for the blind. In 1931, the Library of Congress National Library Service for the Blind and Physically Handicapped was established by an act of Congress. Since then, funding for this immensely valuable program has been included in the legislative branch bill, which, of course, funds the Library of Congress. The National Library Service and a handful of nonprofit organizations reproduce in specialized formats published material that is readily available to sighted individuals in libraries, bookstores, newsstands and countless other locations. Specialized formats refers to braille, sound recordings--either on cassette or phonorecord--and new digital formats that can be used for special software. To make certain that recorded books and magazines are only used by those for whom they are intended, they are recorded at a speed that simply does not work on standard tape players. The National Library Service provides special tape players and record players to eligible individuals. This equipment is not generally available to the public. To be eligible to receive this special equipment, an applicant must be certified by a qualified professional such as a doctor, nurse or social worker that he or she is unable to use standard print. The National Library Service selects the books to reproduce in these specialized formats. Frequently, the National Library Service issues request after request only to wait months for a response from the publisher. These delays are not because the publishers have a desire to withhold permission; it is simply a low priority. They just set it aside. There are still 17 books from the 1995 best seller list for which permission is still pending. For our Nation's more than 54,000 blind elementary and secondary school students, this is a great problem. The American Printing House for the Blind in Louisville, KY, is the primary producer of braille textbooks. It is a challenge to reproduce today's highly visible textbooks in braille format. Maps, charts, graphs, and illustrations that take up one page in a standard textbook may require multiple pages of braille or tactile graphics to convey the same information. All in all, it can take a full year to produce a braille textbook. Added time consumed by trying to get permission from publishers makes it certain that the blind student is not in sync with his classmates. The amendment Senator Frahm and others and I are introducing seeks to end the unintended censorship of blind students' access to current information. The amendment, as I say, is endorsed by the Association of American Publishers, the National Federation of the Blind, the American Foundation for the Blind, the American Printing House for the Blind, and the U.S. Copyright Office. This is a very simple amendment. This says groups that produce specialized formats for the blind no longer are required to gain permission from the copyright holder before beginning production. It is based on an agreement that was reached last January between the Association of American Publishers and the National Federation of the Blind. It includes a very narrow definition of those who are eligible to undertake such production and applies the definition for eligibility used by the National Library Service to those who receive reproductions. So, Mr. President, as has been said by a member of the National Federation of the Blind, It should be obvious that the delays here present a significant barrier which must be overcome if blind people are to be informed and literate. It is not too much to say that living successfully in our modern society often depends upon being able to communicate ideas and facts both orally and in writing. I conclude by a statement from Marybeth Peters, who is the Register of Copyrights at the Library of Congress. In testifying before the Senate Judiciary Committee she said, Blind and physically handicapped readers have a legitimate need for prompt and timely access as soon as possible after works become available to the general reading public. Textbook materials in particular are commonly out of date within 1 to 2 years, superseded by new editions. Passage of this amendment will permit the speedy access to information that blind people need. It is my understanding the managers of the bill are prepared to accept the amendment, but we are waiting for the approval of the ranking member of the Judiciary Committee. So, Mr. President, I thank the managers of the bill and hope that when we receive the approval, as I expect we will, of the ranking member of the Judiciary Committee, if I am not here, the manager of the bill might be able to call up this amendment and have it considered in my absence. I ask the manager and the ranking member of the committee, if we receive the approval--the only thing we are waiting for is the approval of the ranking member of the Judiciary Committee. If I could pass that on, when it is received, to the managers, if they could then call up the amendment if I am not here. ---------- I'm forwarding a message from the National Federation of the Blind which indicates that the Chafee copyright amendment has passed Congress and is expected to be signed soon by the President. Congratulations to NFB for its leadership on this issue! ---------- A Press Release from the NATIONAL FEDERATION OF THE BLIND 1800 Johnson Street Baltimore, Maryland 21230 (410) 659-9314 For more information contact: James Gashel Director of Governmental Affairs 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. When the legislation is signed by President Clinton, which is expected, the changes in the copyright law resulting from the Chafee amendment will go into effect immediately. This will mean 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 the copyright permission process is now a thing of the past. The procedures and delays involved in securing copyright clearance are also now in the past. 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. ---------- Congressional Record dated Tuesday, September 3, 1996 Senate Section Attributed to CHAFEE (R-RI) BOOKS FOR THE BLIND Mr. CHAFEE. Mr. President, I am pleased to support final passage of the conference report on the appropriations bill for the legislative branch. The managers of the bill have done a laudable job in their continued efforts to reduce spending, and I am particularly delighted that they were able to include my amendment on books for the blind. This amendment, which makes a very small change in current copyright law, will make an enormous difference to our Nation's blind children and adults. It has the approval of the authorizing committees in both Chambers, as well as the support of the National Federation of the Blind, the American Foundation for the Blind, the American Printing House for the Blind, Recording for the Blind and Dyslexic, the American Council of the Blind, the Association of American Publishers, and the U.S. Office of Copyright. The amendment which I offered with Senators Frahm, Stevens, Leahy, McConnell, Bingaman, Frist, Ford, Pressler, and DeWine resulted from the efforts of Ambassador Anthony Veliotes, representing the Association of American Publishers, and Dr. Kenneth Jernigan, representing the blindness community. In January, they met and agreed that this amendment would address the needs of the blindness community without compromising the rights and interests of the publishers. I greatly appreciate their help and the help of my constituent, Ed Beck, the legislative representative for the Rhode Island affiliate of the National Federation of the Blind, who first brought this to my attention. National Library Service and a number of nonprofit organizations, such as The American Printing House for the Blind and Recording for the Blind and Dyslexic, reproduce, in specialized formats, published material that is readily available to sighted individuals in libraries, bookstores, newsstands, and countless other locations. "Specialized formats" refers to braille, sound recordings--either on cassette or phonorecord--and new digital formats that can be used with special software. My amendment seeks to end the unintended censorship of blind individuals' access to current information. Under this amendment, groups that produce specialized formats for the blind no longer are required to gain permission from the copyright holder before beginning production. James Gashel of the National Federation of the Blind was invaluable in his efforts to help us put forth a proposal that would be acceptable to all sides. He is a strong and able spokesman for the blind. Also, I would like to thank the managers of the bill, who were completely accepting of this amendment, as well as their staff, Larry Harris with Senator Mack and Jim English with Senator Murray. Let me close by quoting from a letter I received from Mr. Gashel that explains the significance of this amendment to the blindness community. Mr. Gashel writes: This is a significant change for us. It means, for example, that the current best-sellers, which the Library of Congress produces for us, should be available in Braille or recorded format within months rather than a year or more. It also means that blind children in schools should be able to have the editions of textbooks being used by their sighted classmates this year rather than the ones in use last year. ---------- Clinton Signs Copyright Law for Alternative Texts Note: Below is the text of a speech given by President Clinton when he signed this important legislation. ----------------------------------------------------------------- "I have today signed into law H.R. 3754, the "Legislative Branch Appropriations Act, 1997," said President Clinton. "The Act provides fiscal year 1997 appropriations for the Congress, the Congressional Budget Office, the Architect of the Capitol, the General Accounting Office, the Government Printing Office, and the Library of Congress. "I am especially pleased to sign into law a provision that will allow blind and visually impaired persons to get earlier access to books and other reading matter. As a result of an agreement between the publishing industry and advocates for people with disabilities, books can now be converted into alternative formats such as Braille as soon as they appear in print. Prior to this change, the Library of Congress and other organizations that sought to provide these materials had to obtain permission from copyright holders on a case-by-case basis, leading to lengthy delays in access to all types of reading material. This law will help us reach our goal of full inclusion of people with disabilities. "I am also pleased with the provision that encourages the Senate to transfer excess or surplus computers and other educationally useful equipment to public schools at the lowest possible cost. This complements our initiative to encourage Federal agencies to do the same to help integrate technology into school curriculums, and ensure that all students have the skills they will need to succeed in the information-intensive 21st century." ........... WILLIAM J. CLINTON THE WHITE HOUSE September 16, 1996 ---------- End of Document