The Case for Copyright Exceptions and Fair Use

The next time you set your digital device of choice to record your favorite show so you can watch it whenever you want, take a moment to be thankful that you’re protected from lawsuits from the entertainment industry. For on January 17, 1984, the Supreme Court of the United States ruled that consumers could tape their favorite TV shows and watch them later without the copyright holder’s consent. Such action, the Court decided, didn’t constitute copyright infringement because it was fair use, that is, a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work.

This ruling by the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), also known as the “Betamax case”, is a landmark copyright precedent that has had enormous implications for the media economy. It affected every step of the evolution of digital media—from the VCR to the digital video recorder to YouTube. It also underscores just how critical a balanced copyright law is for technology innovation.

Why do we at Benetech care about this so much? It’s because our mission depends on a balanced intellectual property system that encourages innovation. As a different kind of Silicon Valley tech company—a nonprofit with a pure focus on social good—our goal is to see that the best of technology gets applied to social needs left unaddressed by for-profit businesses. The tools we develop for that purpose span a range of fields—from human rights, to global literacy, to the environment—but no matter what area we work in, we depend on an IP system that’s friendly to technological advances and to positive social impact.

After all, our IP system was set up precisely to balance the interests of society with those of creators. We are especially concerned that the IP system ensures that it’s both easy to serve disadvantaged communities and to innovate. For this IP system to work for all, it’s critical that copyright exceptions such as fair use be defended as a laboratory for creativity.

Today, January 17, the 30th anniversary of the Betamax decision, we’re proud to mark Benetech’s participation in Copyright Week—a week of action that aims to engage communities in the ongoing conversation about changes to copyright law and celebrate six principles for a balanced copyright system. We’re joining the Electronic Frontier Foundation, which is leading this effort, and other participating organizations, including the American Library Association, Center for Democracy & Technology, Creative Commons, Knowledge Ecology International, Public Knowledge, Scholarly Publishing and Academic Resources Coalition, and the Wikimedia Foundation. We’re pleased to contribute to today’s theme, celebrating the fifth of the six principles: Fair Use Rights. And, Benetech is committed as an organization to all of these six principles.

To better understand why promoting “breathing space” for creativity is crucial for copyright to achieve its purpose of encouraging innovation, consider some examples from Benetech’s work that demonstrate how copyright exceptions can create a framework for innovation in action.

Bookshare: Solving the “Accessible Book Famine”

Twelve years ago, we had an idea for recreating the traditional library for people with print disabilities—such as those who are blind, cannot physically turn the pages of a book, or have learning disabilities, like dyslexia—using the then-emerging technologies of digital books and crowdsourcing. We called this idea Bookshare, which is now Benetech’s largest Global Literacy initiative. Bookshare is made legally possible by two copyright exceptions: Section 121 and Section 107 (fair use) of the U.S. copyright law. Let me first explain what Section 121, also known as the Chafee Amendment, has meant for Bookshare and the people we serve.

The Chafee Amendment allows authorized nonprofit entities like Benetech to create accessible versions of copyrighted books without the need to request permission from publishers (or pay a royalty) and then to distribute these versions exclusively to people with qualifying disabilities. We’re committed to upholding the social bargain implicit in the Chafee Amendment—namely, help people with bona fide disabilities, but have minimal impact on the normal commercial process of selling books. And this copyright exception, in turn, has enabled us to create a completely new approach to providing people with disabilities access to the books they need for education, employment and inclusion in society.

Bookshare has reshaped the accessibility field and today serves over 250,000 members (the majority of whom are U.S. students) with a collection of 220,000+ (and counting) accessible books—the world’s largest library of its kind. In the U.S., we’ve gone from addressing a sliver of the “accessible book famine” to solving most of it, and we now deliver an accessible book to a student for less than one-fifteenth of the cost of traditional approaches. Imagine the benefit to society when we go from solving less than five percent of a social problem to most of it, while using less money!

The Chafee Amendment has been crucial for this accomplishment. First, it was written broadly enough to encourage bold ideas that challenged the status quo in the accessibility field. It’s also at the core of our ecosystem of socially responsible publishers who voluntarily provide us high-quality digital versions of their books—a major driver behind our rapidly growing collection. Publishers provide more than 80% of the thousands of books added each month to the virtual bookshelves of our online Bookshare library, under voluntary permission agreements modeled after the Chafee Amendment.

However, Bookshare continues to rely on the Chafee Amendment to regularly scan thousands of books each year without publisher authorization—and to incorporate similarly scanned books provided by college and university partners—in response to ongoing requests from users with disabilities. Without the rights the Chafee Amendment grants to Bookshare and our volunteers and partners, our work would be substantially curtailed and the materials made accessible to people with print disabilities would be significantly restricted. The Section 121 exception is a major and indispensable safety net for accessibility. But, it’s not the only one!

Accessibility

However useful the Section 121 exception has been for Bookshare, it is very narrowly drawn to cover nonprofit organizations and government agencies with a primary purpose to serve people with disabilities. In reality, the entire field of accessibility hinges on a robust fair use exception, Section 107. Making content accessible for the blind has been a traditional example of fair use. Individuals, schools and for-profit companies are often called upon to make their materials accessible, and fair use creates a framework that makes much of that work legally possible.

Even Bookshare, with its position as an entity that can use the Section 121 exception, benefits greatly from fair use. This copyright exception allowed for the creation of the scanned copies that were originally used to create Bookshare. For instance, a Bookshare member who is blind contributed to the initial Bookshare collection 3,000 books he and his family had scanned on their own. It wasn’t legal for him to distribute those books to other people who are blind, but it was for Bookshare to do so using Section 121.

In addition, Section 121 is quite short and doesn’t explicitly discuss some important accessibility issues, such as making the content of pictures, math equations and diagrams available in alternate forms, like textual descriptions or tactile graphics (see the next section on this!). The fair use principle established in Section 107 provides legal backup, another basis for protection for our staff and volunteers. It has been critical for Bookshare’s foundational principle of “scan once, share with many.”

DIAGRAM: Making Images Accessible

Fair use also has continued relevance to our social mission as we look to the future of our work within our Global Literacy program. You see, our world is no longer dominated exclusively by the printed word, but also by images and video—and we believe it’s a world everyone should be part of.

While many of the challenges of making text accessible have been addressed by the move to digital book publishing and by solutions like Bookshare, people with print disabilities are often still locked out from accessing information related to images—a problem that’s becoming increasingly pressing as digital content is quickly shifting to include richer, more visual components, and is especially critical for STEM (science, technology, engineering, and math) books.

To address this need, we’ve been operating the DIAGRAM Center, a research and development hub working to set standards, generate best practices, and design tools to ensure that images found in digital content are accessible to everyone. One of our goals is to lower the cost of making an image accessible by at least a factor of ten. To that end, we need to turn inaccessible images, such as equations in a digital math book, into machine-readable information. And again, many of the people and organizations helping realize this vision of accessibility aren’t covered by the more restrictive Section 121. We’re in the midst of these efforts to make image accessibility significantly less costly, but it’s almost certain that the legal framework for such efforts will be based on the provisions of fair use.

Challenges and Opportunities

I am highly optimistic about the opportunity to solve the accessibility problem through innovative applications of technology. However, I don’t want to understate the challenges we face.

For a start, more than a decade into the digital book era, technological protection measures (TPMs)—that is, tools designed to restrict the use or access to a work—still prevent people who are blind from using ebooks they purchase. Isn’t it ironic that the people who most need access to digital books have been so discriminated against in utilizing them!

Furthermore, the legality of digital fair use continues to be challenged. In September 2011, the Authors Guild sued the HathiTrust digital library—a partnership of academic and research institutions that had created with Google a collection of millions of titles digitized from libraries around the world—alleging massive copyright violations. A federal court ruled against the Authors Guild in October 2012, finding that HathiTrust’s use of books scanned by Google was fair use under U.S. law. One of the key justifications that the court used was the value of the scanned books to the blind, who could benefit so much more from a digital version of a library book than a physical copy sitting in a dusty stack.

The Authors Guild appealed the ruling and the parties are waiting for the decision from the appeals court. As a leading provider of accessible books to people with print disabilities in the U.S., we at Benetech are concerned that the Guild’s arguments in their appeal regarding the definition of “specialized formats” would nullify Section 121 and remove the legal authorization for the important services that we provide, relegating people with disabilities to second-class status. Full disclosure: I was an expert witness in the district court case, and filed an amicus brief in the appeal supporting the decision of the district court. You can read more about our position in the Amicus Brief we filed jointly with our peer organization, Learning Ally, in the HathiTrust appeals case.

On the other, much brighter side, this is definitely a critical and hopeful time where technology and massive industry shifts make it possible to realize our shared dream of equal access to information for all people with print disabilities. The U.S. often leads the way towards that better tomorrow. One great example is the recently adopted “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled”—an international copyright treaty that would make a copyright exception for people with disabilities a global norm and allow organizations like ours to share accessible books across national borders.

As someone who helped create the original draft of what became the Treaty, it was a momentous event for me personally to see the great model we’ve used in the U.S. spread globally, as I described in a post on the significance of this landmark treaty.

Conclusion

At their best, IP laws encourage technological advances, reward creativity, and benefit society. Practical and creative innovators need space to operate and ensure those benefits reach the people who desperately need new solutions but are often least able to afford them. To make this possible, we must ensure balance in copyright laws and defend fair use as a laboratory for creativity. With the leverage of technology and the foundation provided by well thought out IP laws, we can inspire both economic growth and social good.