Tag: accessibility

2018 DMCA Section 1201 Exemptions Announced

On October 26, 2018, the Librarian of Congress issued the final rule for the current exemptions to the section of the Digital Millennium Copyright Act that prohibits circumvention of technological measures that control access to copyright protected works. We have written before about this area of the law and the rulemaking process involved (see our post on the previous exemptions from the last triennial proceeding in 2015).

The Prohibition against Circumvention under Section 1201

Section 1201(a) of U.S. Copyright Law prohibits the circumvention (e.g., descrambling, decryption, or removal) of a technological measure employed on or behalf of a copyright owner that effectively controls access to the copyright protected work. In order to ensure that non-infringing uses of copyrighted works are not unnecessarily inhibited by the prohibition on circumvention, however, a rulemaking session is held every three years to identify exemptions for particular classes of works.

Exemptions are determined by the Librarian of Congress, upon recommendation from the Register of Copyright, and remain in effect for three years.[1] There is no presumption that that a previously adopted exemption will be readopted, but new to the seventh triennial proceeding was the introduction of a streamlined process to renew exemptions adopted in 2015.

2018 DMCA Exemptions

On October 26, 2018, the final rules from the most recent triennial proceeding were announced.[2] The final rule includes exemptions covering 14 classes of works. We have created a chart to summarize all of the exemptions for this rulemaking proceeding. Exemptions include:

  1.  Short portions of motion pictures (including television shows and videos) for purposes of criticism or comment;
  2.  Motion pictures (including television shows and videos), for the purpose of adding captions and/or audio descriptions by disability services offices or similar units at educational institutions for students with disabilities;
  3.  Literary works, distributed electronically, protected by TPM interfering with screen readers or other assistive technologies;
  4.  Literary works consisting of compilations of data generated by patient’s implanted medical devices and personal monitoring systems;
  5.  Computer programs that that operate cellphones, tablets, mobile hotspots, and wearable devices to allow connection to a wireless network (“unlocking”);
  6.  Computer programs that operate smartphones and all-purpose mobile computing devices, to enable interoperability or removal of software applications (“jailbreaking”);
  7.  Computer programs that operate smart TVs for the purpose of enabling interoperability with computer programs on the smart television;
  8.  Computer programs that enable voice assistant devices to enable interoperability or removal of software applications;
  9.  Computer programs contained and controlling function of motorized land vehicles to allow diagnosis, repair, or modification of a vehicle function;
  10.  Computer programs that control smartphones, home appliances, or home systems to allow diagnosis, maintenance, or repair of the device or system;
  11.  Computer programs, for purposes of good-faith security research;
  12.  Video games in the form of computer programs, where outside server support has been discontinued, to allow individual play and preservation by an eligible library, archive, or museum;
  13.  Computer programs, except videos games, no longer reasonably available in commercial marketplace, for preservation by eligible libraries, archives, and museums; and
  14.  Computer programs operating 3D printers, to allow use of alternative feedstock.

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Copyright Roundup, Part III

Continuing in our copyright roundup series, we will review some of the most recent legal cases and developments in copyright law and policy.

More Fair Use Victories:

Cambridge University Press v. Becker

Fair use has once again prevailed in the most recent decision of the Georgia State e-reserves case. The case, originally filed in 2008, involves Georgia State University’s electronic reserve system, a system through which professors made small excerpts of copyrighted books available to their students for free. Shortly after the lawsuit was filed, GSU modified their policy to provide professors with a fair use checklist to assist in selecting excerpts. In 2012, the district court found most of the uses in question to be fair uses. On appeal, the Eleventh Circuit held the district court erred by adopting an arithmetic approach to their fair use analysis.  The 2012 trial court ruling was vacated and sent back to the district court with instructions for a more holistic approach to fair use.

On March 31, 2016, the most recent decision from the district court was published, again finding the majority of claims (44 out of the 48) to be fair uses. The court’s analysis was specific to instances of nontransformative and nonprofit educational purposes of teaching. For an analysis of the decision and what it may mean for libraries going forward, see Krista Cox’s post “A Deeper Dive Into the New Georgia State Decision.”

Oracle v. Google

Oracle, owners of the Java programming language, sought $9.3 billion in damages for Google’s reproduction of the structure, sequence, and organization of 37 packages in the Java application programming interface (API) within Google’s Android operating system.[1] After three days of deliberation, a jury found Google’s use of Java APIs to be a fair use, notwithstanding Google’s commercial nature and evidence of internal emails questioning the need to obtain a license.

But what exactly is an API? Defining “API” has been a challenge for both sides throughout the litigation. Google received attention for wheeling in a physical file cabinet labelled “java.lang” in their opening arguments during May’s jury trial, while Oracle previously took the approach of constructing a hypothetical situation referencing Harry Potter. Earlier in its 2012 opinion, the district court outlined the package-class-method hierarchy of the Java programming language, analogizing APIs to a library.  In this analogy, Google replicated the names and functions of the API packages (bookshelves in the library) but wrote their own code to replicate the classes (books on the bookshelves) and methods (how-to chapters of the books).

Terry Reese, Head of Digital Initiatives at University Libraries provides clarification on what exactly an API is and how the restrictions on the use and reproduction of APIs may impact the Libraries. Terry shares, “APIs act as a common language between developers enabling faster and more efficient development.  In essence, they are the bridges between systems and services that allow the tools and technology that we use to simply work.  Take for example, the simple task of printing this blog post.  Think about what’s really happening.  The application (your browser) is communicating with the operating system, which in turn, communicates with a printer device driver to pass the data to the printer.  Very likely, the browser, the operating system, the printer — these are all created by different developers and different companies.  However, the applications and services can communicate together due to the utilization of a common set of APIs.”

The use and reproducibility of APIs supports interoperability between programs and services, and as Terry notes, the fair use of APIs is “hugely important for the long-term health of IT and open development.  Within today’s technology environment, integration between services, applications, standards, etc. drive innovation and integration.  This integration is possible due to the availability of common APIs.”

Oracle has stated their intention to appeal the decision.[2]

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Copyright and Accessibility

Many educational institutions, including Ohio State, share the mission of advancing and encouraging the spread of knowledge. At times, however, the exclusive rights of copyright owners can impede this mission by conflicting with the important objective of making works accessible to all, particularly to individuals with disabilities. Even with the emergence of new technologies that facilitate instantaneous copying and dissemination of materials, owner control over reproduction and distribution of works has continued to create an obstacle to the growth of works in formats accessible to individuals with print, hearing, or other disabilities. Statistics from the World Blind Union reveal, for example, that of the approximately 1 million books published per year, less than 5% are made in formats accessible to the print-disabled.[1] Given the significant societal benefit that is achieved by promoting equal access, it is important to understand the provisions of copyright law that currently support the growth of works in accessible formats and identify opportunities for further change.

Current U.S. copyright law lacks a blanket exception for accessibility, relying instead on a patchwork of statutory exceptions and the doctrine of fair use. This blog will cover some of these current key exceptions, as well as potential developments under national and international law.

The Chafee Amendment and Performance of Literary Works under §110

One important provision in copyright law that promotes accessibility to copyrighted works is the Chafee Amendment. The Chafee Amendment (17 U.S.C. § 121) permits an authorized entity to reproduce or distribute copies of previously published nondramatic literary works if the copies are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.

Authorized entities include nonprofit organizations or governmental agencies “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.” The vagueness surrounding the definition of “authorized entity” has contributed to confusion and reluctance to rely on the protections set forth in the Chafee Amendment. Do educational institutions like The Ohio State University, who are bound to comply with the provisions of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA),[2] qualify as authorized entities? Publishers assert that only institutions who specialize in promoting accessibility (e.g., the National Library Service for the Blind), not educational institutions in general, qualify as authorized entities. Educational institutions, on the other hand, argue that their work and legal obligations under federal law establish them as authorized entities under the Chafee Amendment.

The Copyright Act also provides narrow exceptions for the performance of literary works. Section 110(8) permits certain eligible entities to perform nondramatic literary works by or in the course of a transmission specifically for the print or hearing disabled when the transmission is noncommercial. Section 110(9) permits an authorized radio subcarrier to make a single transmission of a dramatic literary work for the print disabled if the performance is noncommercial and the work was published at least 10 years before the performance.

Current & Proposed Exemptions under the Digital Millennium Copyright Act (DMCA)

Section 1201 of the Digital Millennium Copyright Act (DMCA) prohibits any individual from circumventing technological protections measures placed on a work. For example, you cannot decrypt DVDs protected by Content Scrambling System (CSS). The law, however, provides exemptions to this anti-circumvention rule. One current exemption, in effect from 2012-2015, allows for the circumvention of electronically distributed literary works that are protected by technological measures when those technological protection measures prevent the enabling of read aloud functionality or interfere with screen readers or other assistive technologies. Literary works must be lawfully obtained by a blind or other person with a disability (for nondramatic literary works the work must be lawfully obtained and used by an authorized entity under the Chafee Amendment) and the rights owner must be appropriately remunerated for the price of the mainstream copy of the work. A renewal of this exemption has been requested in the 2015 triennial review.[3]

Another current exemption permits the circumvention of motion pictures and other audiovisual works that are on DVDs protected by the Content Scrambling System (CSS) or distributed by an online service that is protected by technological measures, in order to facilitate research and development of players that are capable of providing captioning or descriptive audio.

The Important Role of Fair Use

The statutory exceptions listed above are relatively narrow in their applications, including limitations on who may reproduce or transmit a work, the type of work that may be reproduced or transmitted, and who may benefit from such activities. One exception in copyright law that has been instrumental in filling in the gaps left by these narrow exceptions and promoting accessibility for copyrighted works has been fair use.[4] A recent decision by the Court of Appeals for the Second Circuit has reinforced the significant role of fair use in increasing the accessibility of copyrighted works.

In Authors Guild, Inc. v. HathiTrust,[5] HathiTrust created a shared digital repository of collection materials from academic and research member institutions, allowing full access to patrons with qualifying disabilities. The district court held this activity was permissible under the Chafee Amendment, stating that educational institutions “have a primary mission to reproduce and distribute their collections to print‐disabled individuals…[making] each library a potential ‘authorized entity’ under the Chafee Amendment.” The court held, however, that HathiTrust was not precluded from relying on the defense of fair use in the event that they were not authorized entities or did not otherwise fall within the permissible categories of the Chafee Amendment. On appeal, the Second Circuit held that providing full digital access to print-disabled patrons was protected under fair use. [6]

International Considerations: Adoption of the Marrakesh VIP Treaty

U.S. copyright law may also be influenced by international agreements. One international treaty directed to making works more accessible is the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities (“Marrakesh VIP Treaty”). The Marrakesh VIP is an international treaty administered by the World Intellectual Property Organization (WIPO) which would obligate signatory countries to create mandatory limitations and exception to their copyright laws pertaining to “the right of reproduction, the right of distribution, and the right of making available to the public…to facilitate the availability of works in accessible format copies” for the benefit of people with print disabilities.[7] The treaty would also permit exchange of accessible works across borders by authorized entities serving the blind, visually impaired and otherwise print disabled. Finally, the Treaty provides that contracting parties take appropriate measures to ensure that any anti-circumvention restrictions do not prevent the blind, visually impaired, or print disabled from enjoying any of the exceptions provided for in the Treaty.

The Treaty, adopted on June 27, 2013, will go into force three months after 20 eligible entities have acceded to or ratified the Treaty. There is currently accession or ratification from ten nations. The United States signed the Treaty on October 2, 2013 but has not yet ratified the Treaty.

In Conclusion

Making copyrighted works available in accessible formats can present a challenge to the exclusive rights of copyright owners. Absent a blanket exception that would allow for the creation of accessible formats for all persons with disabilities, individuals and educational institutions must navigate the existing narrow statutory exceptions or rely on a fair use defense in order to make works accessible. While society recognizes the importance of incentivizing creators to create new works, we must also recognize the importance of establishing equal access to those works in order to advance public knowledge and encourage further creation of works.

Accessibility Resources


By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

[1] Limitations and Exceptions: Access to Books for the Visually Impaired – Background Brief, World Intellectual Property Organization, http://www.wipo.int/pressroom/en/briefs/limitations.html (last updated January 2014).

[2] Section 504 of the Rehabilitation Act of 1973 provides that no qualified individual with a disability, solely by reason of his or her disability, be excluded from participating in, or be subjected to discrimination under any program or activity receiving federal funding. 29 U.S.C. § 794(a). The Americans with Disabilities Act of 1990 requires public entities to make reasonable modifications when necessary to avoid discrimination on the basis of disability. 28 C.F.R. Sec. 35.130(b)(7).

[3] 79 FR 73863 (December 12, 2014).

[4] The House Report on the Copyright Act of 1976 also identifies making accessible copies of works for the blind as an illustrative application of the fair use doctrine (“…the making of a single copy or phonorecord by an individual as a free service for a blind persons would properly be considered a fair use under section 107.” H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. (1976).

[5] 902 F. 22 Supp. 2d 445, 460‐64 (S.D.N.Y. 2012).

[6] 755 F.3d 87 (2d Cir. 2014).

[7] Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled art. 4, June 27, 2013, TRT/MARRAKESH/001.

Accessibility, E-Book Readers, and Copyright Issues for Colleges and Universities

 I’ll be at Innovate 2011 on Wednesday, April 27, talking about Accessibility, E-Book Readers, and Copyright Issues for Colleges and Universities with Ken Petri.   We’ll be on from 3:00-3:50 p.m.

Recent legal disputes over copyright and accessibility for e-books have highlighted the tensions in these two areas of law.  At the same time, accessible e-book formats and reader capabilities are developing rapidly.  Learn about conflicts between the rights of copyright holders and the rights of disabled students, accessibility features in popular e-book formats, and trends and compromises for the future.

Multiple Perspectives on Access, Inclusion, and Disability Conference in May

I am looking forward to the Multiple Perspectives on Access, Inclusion, and Disability Conference, which will be held May 4-5, 2011 at Ohio State.  I am doing a presentation on copyright and disability, and I am very glad to be on the program.  All of the sessions look interesting, but for me the highlight will hearing Daniel Goldstein speak on “The Right to Digital Access: Current Issues, Challenges, and Opportunities.” Mr. Goldstein is counsel to the National Federation for the Blind and a very influential figure in disability law.  His address will be free and open to the public.

The registration fees for the conference are very reasonable.  There is a substantial discount for OSU faculty and staff, and the conference is free for students who attend sessions only.

Stevie Wonder @ WIPO

Stevie Wonder urges the World Intellectual Property Organization to adopt copyright rules that facilitate information access for the disabled.