RLI 281
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
the original, intended purpose. The court found that use of the entire work is fair where appropriate to
the purpose. Moreover, the court pointed to evidence showing that a market likely could not develop
for licensing these kinds of uses, and that further, because they are transformative, these uses cannot be
subject to licenses. The ADA requires, and fair use and the Chafee Amendment allow, digitization for
accessibility.
Finally, the court determined that making library collections equally accessible is required for equal
access to education for the print disabled. The market will not satisfy the need. The court found that the
Chafee Amendment applies because the ADA makes accessibility a “primary mission” for all libraries.
And Judge Baer noted that even if the Chafee Amendment does not apply, fair use does. This landmark
ruling is powerful evidence that the law will strongly favor libraries when they do what is necessary—up
to and including digitizing millions of books—in order to provide equitable access to materials.
This decision presents many opportunities for research libraries. For example, the decision strongly
suggests that research libraries now may retain scanned, digital copies that were previously made
available to a disabled student and make them available to other print-disabled students. Retention
of these copies for that purpose constitutes a fair use. In addition, once a research library or disability
services office makes a scanned copy of a work under the Chafee Amendment, the print disabled at
other institutions may use this copy, rather than duplicate the scanning effort. Moreover, if vendors and
publishers do not provide works in an accessible format to the research library, fair use entitles the library
to make these resources accessible. Finally, the use of descriptive metadata to improve accessibility to the
Hathi corpus, such as the labeling of images, will over time result in a more effective and higher quality
search for all users.
US Engagement with World Intellectual Property Organization (WIPO)
The US government is participating in international discussions at the World Intellectual Property
Organization (WIPO) in support of an international instrument for exemptions and limitations for the
visually impaired. It is not clear if the “Working Document on an International Instrument on Limitations
and Exceptions for Visually Impaired Persons/Persons with Print Disabilities”40 will become a binding
treaty or take another form of international agreement such as guidelines or recommendations known
as “soft law.” The Library Copyright Alliance, as a non-governmental organization represented at WIPO,
is actively engaged in these discussions. A meeting in November 2012 is seen as central to determining
the pace and progress of whether an international instrument will be completed in the near term. WIPO
discussions typically take years to conclude, and this discussion concerning access to copyrighted works
by the visually impaired has been under discussion since 2006.
Disability and Copyright Law in Canada
In Canada, accessibility law is under provincial or state jurisdiction. There is no national legislation
specific to the area of accessibility. Therefore, practices supporting people with disabilities may vary
from province to province. In Ontario, for example, academic institutions and libraries work under the
Accessibility for Ontarians with Disabilities Act (AODA); whereas, in Saskatchewan, the Saskatchewan
Human Rights Code, alongside the Canadian Charter of Rights and Freedom, is applied.
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