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uS aND caNaDiaN DiSaBiLity POLiciES, rEcENt cHaLLENGES, aND uS aND caNaDiaN cOPyriGHt Law
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DECEMBER 2012 RESEARCH LIBRARY ISSUES: A QUARTERLY REPORT FROM ARL, CNI, AND SPARC
expressly that Section 107 of the Copyright Act, fair use, is available to resolve the apparent tension
between copyright and accessibility (see next section for details about this court decision).
The Copyright Act recognizes the importance of making works accessible and provides several
specific exceptions that support library efforts for this purpose: Sections 107, 110(8), and 121.
The primary copyright exception in this area is Section 121 of the Copyright Act, often called the
“Chafee Amendment,” which permits copies of previously published, nondramatic literary works to be
translated into “braille, audio, or digital text” and distributed to individuals with specified disabilities.31
Many established formats for disabled patrons, such as large-print books, are not included. This privilege
is qualified by several important limitations regarding the type of use, the items that may be copied, and
the institutions that are authorized to create these translations.
Copies under the Chafee Amendment can only be made by an authorized entity—a government
agency or a nonprofit organization that has a “primary mission to provide specialized services relating
to adaptive reading or information access needs.” Many libraries and other organizations believe that
providing services to the print disabled is a primary mission and thus have been serving the print-
disabled community. The ruling in The Authors Guild, Inc., et. al., v. HathiTrust, et. al. fully supports this
view. As stated by Judge Baer, “The ADA requires that libraries of 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.”32
Libraries also rely on partnerships with other authorized institutions, such as the National Library
Service Program, Learning Ally (formerly Recordings for the Blind and Dyslexic), State and Regional
Libraries for the Blind, Bookshare, and the American Printing House for the Blind.33
Finally, the Chafee Amendment clearly delineates which patrons may avail themselves of copies made
under this exception. Copies may only be distributed to “individual(s) with a disability” who are certified
by a competent authority as unable to read normal printed material as a result of physical limitations.
Library of Congress regulations—described in 36 CFR 701.6(b)(1) & (2)—explicitly define the types and
degree of disability as well as the particular bodies that qualify as “competent authority” to certify
disabled individuals. Disabled patrons who have not been certified by one of the authorities named in the
law may not access copies made under Chafee.
Overall, the Chafee Amendment provides an important exception to copyright’s limitations on
copying, but some believe it offers insufficient latitude to support libraries’ efforts to fully serve all
patrons and meet their legal obligations.
The Copyright Act provides another exception for libraries: 17 U.S.C. §110(8) permits “performance of
a nondramatic literary work, by or in the course of a transmission specifically designed for and primarily
directed to” patrons who are unable to “read normal printed material” or “hear aural signals” as a
result of their disability.34 These transmissions must be “made without any purpose of direct or indirect
commercial advantage” and made available through the facilities of a government body, a noncommercial
educational broadcast station, or a narrowly defined set of broadcasters. This permits qualifying libraries
to stream content directly to patrons with disabilities in these limited situations.
Copyright law also provides a general exception for socially valuable uses. Fair use may support
copying to “fill the gap” in cases where copying benefits society and where the market is not reasonably
providing necessary services. A claim of fair use is evaluated based on the statutory factors described in
17 U.S.C. § 107, including the following: (1) the purpose and character of the use, including whether such
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