A Strategy for Ensuring Protection for Third-Party Described Content and Other Forms of Accommodation and Inclusion

What our discussion of TDC illustrates, we believe, is that something as simple as describing a movie or video for someone with vision loss should not get caught up in a copyright quagmire; it should be encouraged and even facilitated by copyright law. Yes, owners must be rewarded for their creativity, but people with disabilities must be allowed to appreciate that creativity on terms of equality with others. Copyright law does not protect ideas but the expression of those ideas. When one has expressed an idea in a way that cannot be perceived, manipulated, or comprehended by people with disabilities, and a third party can bridge the gap, our laws should deter the former and celebrate and reward the latter. Since rights owners do not own their ideas but the expression of those ideas, when owners fail to express those ideas accessibly, our copyright law should regard such owners as having forfeited their exclusive rights at least to the extent that such rights cannot be exploited to bar others from adapting such expression for people with disabilities. What is more, our copyright law should be designed explicitly to encourage owners to make the expression of their ideas as widely and diversely accessible as possible. Our copyright law should reward owners who do so with full recognition of their exclusive rights in consideration of their commitment to accessibility. And finally, our copyright law should not pit owners and people with disabilities (and those who serve them) against each other but should facilitate cooperation and transparency.

At this point, several things should be very clear about copyright law and TDC. First, there are many circumstances in which production of TDC is not merely allowable under the law but is also creative expression itself deserving of copyright protections. TDC may very well constitute an original work of authorship for which copyright law is intended to afford benefits. It is also very clear that copying copyrighted material and adding description to it may itself be protected conduct under copyright law in light of the fair use doctrine. A claim of fair use would of course be exponentially stronger in those circumstances in which no per se copying is involved. This should be particularly reassuring to producers of TDC who provide description through some means that is independent of the copyrighted material but that is merely sequenced with it in some fashion. In such an instance, if the independent description material can even be considered legally derivative of the copyrighted audiovisual work in the first place, the four-prong fair use analysis would seem to weigh heavily in favor of the TDC producer.

What should, however, also be equally clear to the reader is that the copyright law, and the jurisprudence that has developed over time to give meaning to it, offers a wealth of complex precedent, sophisticated theories, terms of art, and potentially high stakes consequences to owners of copyright who believe that their property rights are being violated and who turn to the threat of litigation to seek redress of their grievances. Let us remember that, ultimately, a court must decide whether an unauthorized derivative work nevertheless constitutes a fair use of the original copyrighted work. The producer of TDC, no matter how innocently description may have been undertaken or no matter how carefully means may have been employed to avoid per se copying of protected content, may very well be harassed by copyright owners through the mere threat of litigation simply because such owners might view such conduct as opening the proverbial floodgates to much more egregious activity by others. It costs copyright owners relatively little to threaten litigation or to in fact formally go to court. The TDC producer, however, will have to either choose to stop offering description, to settle the case, or to defend the conduct in court. No matter which course of action the producer of TDC may take, the consequences are serious. People who are blind or visually impaired may not be provided with the described content they need, the TDC producer may be compelled to surrender significant limited resources, or both. It is true that a producer of TDC could choose to go to court for a declaratory judgment that would establish whether, in the particular circumstances involved, the producer's conduct is a fair use. However, such a strategy has its own inherent risks and significant costs.

No, what is lacking in current copyright law is the certainty that TDC producers need to make described content as widely available as possible. Ultimately, we are not envisioning a few lone individuals or underfunded non-profits to whom people who are blind can turn on an ad hoc basis to struggle to provide description for the occasional movie, program, or video. The tidal wave of video content available to all in our society requires a comprehensive, coordinated, and sustainable network of accessibility first responders who can help keep people with disabilities from drowning in inaccessibility at home, in school, at work, and in community. There is no realistic way that a coordinated and sustained response to inaccessibility will arise naturally in an environment where doing good can get you in trouble with the law.

True, some may have such confidence in their approach to affording accessibility that they are willing to meet any legal challenge head-on, and it is certainly true that, especially when no per se copying of protected content is involved, such confidence is not unreasonable. However, two factors should be remembered. First, many likely producers of TDC will not have the resources to make them comfortable enough to bet on that confidence. Second, it may not always be the most cost effective, logistically feasible, or preferred way to ensure accessibility by simply sequencing independent description with audiovisual materials. In the elementary and secondary school environment, for instance, sequencing description with an in-class video may assume the availability or provision of equipment or network solutions that the school is unprepared or unwilling to employ. It may be much more effective and efficient to make described versions of the in-class video accessible in themselves rather than expecting that an external sequenceable source can or will be provided.

Sometimes the addition of description to an audiovisual work can be achieved through a producer obtaining permission from the copyright owner. However, the process of obtaining permissions may itself pose a barrier if, for no other reason, than because of time delays which result in access not being provided on an equal basis to people with disabilities. There are also questions of equity involved when an owner of copyrighted audiovisual works refuses to offer accessibility through description but then demands payment from TDC producers who want to provide the accessibility that the owners have declined to provide. While many TDC producers are excited about the potential of sequenced description without copying of the underlying content, there may be very real and compelling reasons for employing approaches to TDC that, in one way or another, involve copying or retransmission of an underlying work.

In any event, what is currently lacking in copyright law is Chafee amendment-like protection for the producers of TDC who should feel free to use a variety of means to achieve the end result – greater accessibility of audiovisual content. But what of the Chafee Amendment? Why not leave the current contours of the Chafee Amendment intact and simply add the category of audiovisual works alongside the category of so-called nondramatic literary works that the Chafee Amendment currently contemplates? There are several reasons why such an approach is undesirable, and they are a mixed bag of legal, policy, and practical concerns. A host of interpretive difficulties have plagued the Chafee Amendment since its enactment. Which people with disabilities are to be beneficiaries of the Amendment? Who will determine their eligibility and on what basis? How broad is the class of so-called authorized entities who are permitted to reproduce copyrighted materials in specialized formats? What does it mean for such specialized formats to be exclusively for use by eligible people with disabilities? Are the specialized formats specified in the Chafee Amendment inclusive enough of the array of methods for delivering accessible content that people with disabilities are currently, and will be foreseeably, commonly using? And what about other forms of copyrighted material? What about the accessibility of dramatic literary works? What about the accessibility of pictorial or other works? And what is the value of the Chafee Amendment if copyright owners can nevertheless go after those who otherwise may legitimately reproduce materials in accessible formats but who may have to circumvent technological protection measures in violation of the Digital Millennium Copyright Act (DMCA) just to make use of the core content?

We should resist the temptation not to take a holistic approach to the reconfiguration of the Chafee Amendment in favor of a piecemeal strategy that sets up varying rules with different beneficiaries for each category of works protected by copyright. What is needed is a much clearer set of bright line rules which, when followed, empower accessibility guarantors to do their jobs well without fear, rather than leaving them with crossed fingers that they will be able to successfully defend against challenges to their efforts to help people with disabilities tap the riches of intellectual and cultural life, which the full panoply of copyrighted content represents. In short, what is missing in American copyright law is an unambiguous, concise but comprehensive statement of limitations on copyright owners' exclusive rights whenever the accessibility of their intellectual property is in question, no matter the form in which such property may be embodied.

To achieve this policy objective, we suggest the language below as a starting place for the vigorous dialogue with both owners and policy makers that must be initiated if the vagaries of current law are to be overcome in favor of a more useful framework. In an age where technology is ever increasingly blurring the lines between the various categories of works protected by copyright law, it is imperative that we take a long-range view in crafting public policy so that the law supports, rather than burdens, the proliferation of accessible intellectual work product. At a time when, for instance, so-called 3D printers can make two dimensional and otherwise inaccessible images known through a tactile experience, the struggle to protect legitimate property interests in images must take place without collateral damage to the interests of people with disabilities. At a time when technology can make captioning of the spoken word for people who are deaf or hard of hearing more automated than ever before, the copyright law should allow such means for achieving accessibility, along with more traditional means, to occur especially when owners fail to do so. At a time when our understanding about the nature and impact of disabilities, such as autism, is expanding, and we are learning more about how human beings with and without disabilities relate to one another and to their environment, process and synthesize information, and communicate, copyright law must embrace the full diversity of the very population which, along with rights owners, is the law's intended beneficiary class.

With that, we propose amending the copyright law as follows:

An Amendment in the Nature of a Substitute

Title 17, United States Code, section 121 is amended in its entirety to read as follows:

Section 121. Limitations on Exclusive Rights; Accessibility to People with Disabilities

  1. Authorization.--Subject to subsection (b), and notwithstanding section 106, it is not an infringement of copyright for an authorized entity to make any previously published original work of authorship accessible to beneficiary persons.
  2. Activities Authorized.--Pursuant to subsection (a), an authorized entity (as described in this subsection) may copy, circumvent technological protection measures for, prepare derivative works of, reproduce, render, transform, modify, supplement, perform, or distribute such work by any means or in any form whatsoever only when the authorized entity:

    1. undertakes such activities on a nonprofit basis;
    2. maintains sufficient documentation attesting that such activities are exclusively intended for, and provided to, beneficiary persons;
    3. unless the entity is a governmental agency, has made a triennial declaration to the Librarian of Congress (providing such nonprofit corporate identification, contact, and location information as the Librarian shall require and publish every three years) that the entity has a primary mission, or legal obligation, to serve beneficiary persons and intends to undertake the activities described in this subsection;
    4. can demonstrate that the owner of the original work has not, through publication prior to the time such activities are undertaken, made the work accessible by the specific means or in the specific form employed by the authorized entity to make such work accessible to beneficiary persons;
    5. does not otherwise unlawfully obtain, access, or use such original work or a copy of such work;
    6. through written or other appropriate notice, gives the original work's owner proper attribution for such work and warns against unauthorized subsequent use of the authorized entities activities; and
    7. refrains from undertaking such activities with respect 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 audiovisual, pictorial, or other similar works including descriptions of such works) and displayed to users in the ordinary course of using the computer programs.
  3. Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if

    1. the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency;
    2. the publisher had the right to publish such print instructional materials in print formats; and
    3. such copies are used solely for reproduction or distribution of the contents of such print instructional materials in specialized formats.
  4. Nothing in this section shall affect any other rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

  5. For purposes of this section, the term
    1. "beneficiary persons" means individuals with one or more physical or mental impairments that substantially limit the perception, manipulation or comprehension of any original work of authorship fixed in a tangible medium of expression;
    2. "print instructional materials" has the meaning given under section 674(e)(3)(C) of the Individuals with Disabilities Education Act; and
    3. "specialized formats" means
      1. braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities; and
      2. with respect to print instructional materials, includes large print formats when such materials are distributed exclusively for use by blind or other persons with disabilities.