Best Practices

United States of America

The United States has had longstanding voluntary arrangements between publishers and authorized entities¹ to provide accessible versions of copyrighted works to the visually impaired. In 1996, legislation was adopted to provide an exception in the Copyright Act for this purpose. The Chafee Amendment, codified in Section 121 of the U.S. Copyright Act, limits the exclusive rights of reproduction and distribution by allowing authorized entities to provide copies or recordings of previously published, nondramatic literary works in specialized formats exclusively for use by “blind or other persons with disabilities.²” The U.S. system does not provide for remuneration of rightholders. Certification is required before works are made available to users through use of the statutory exception.

Services are provided pursuant to the Chafee Amendment (and in some cases additional voluntary arrangements with publishers) by authorized entities in the United States including the National Library Service for the Blind and Physically Handicapped (NLS) , Recording for the Blind & Dyslexic (RFBD) , and Bookshare Authorized entities can provide materials for eligible members of both the general reading public and students at all education levels.

The Individuals with Disabilities Education Improvement Act (IDEA) of 2004 introduced a number of provisions relating to the education of children with disabilities and included amendments to the Chafee Amendment to cover instructional materials provided to the visually impaired pursuant to the IDEA. The central purpose of the amendments was to impose a National Instructional Materials Accessibility Standard (NIMAS), so that the electronic files collected for use by State and local educational agencies to create accessible versions of adopted textbooks would be consistent and uniform across the country, and would be created in the versatile XML-based format that allows a variety of accessible format versions of the work to be derived from such source files.

The legislation also established the National Instructional Materials Access Center (NIMAC) . This Center has the statutory obligation to “receive and maintain a catalog of print instructional materials prepared in the National Instructional Materials Accessibility Standard (NIMAS) made available to the Center by the textbook publishing industry, State educational agencies, and local educational agencies.” It must also develop and implement procedures to protect against copyright infringement of the instructional materials that publishers are required by law to provide to the Center.

Publishers who sell their books into a school system must agree to provide NIMAS electronic files for such works to the NIMAC. State or local educational agencies that choose to coordinate with NIMAC then arrange to have the instructional materials from the publisher produced or rendered in the required specialized formats. The 2004 IDEA also amended the U.S. Copyright Act so that a publisher does not infringe copyright by providing electronic files of the content of print instructional material to NIMAC.

Another initiative pursued in the U.S. in recent years has involved voluntary collaboration among stakeholders to improve the availability of textbooks in accessible formats for higher education students. The AAP announced in March 2006 the launch of the Alternative Format Solutions Initiative (AFSI) to address material used in post-secondary education³. Colleges and universities, students, disabled student support services, professionals, national and state disability advocacy groups and technology providers are all involved in AFSI with the aim of creating a national framework to provide print-disabled post secondary students with specially formatted course materials on a timely basis.

One result of the AFSI initiative is the development of the AccessText Network , which was announced in 2008. The AccessText Network is a membership exchange network to facilitate and support the nationwide delivery of alternative files for students with diagnosed print-related disabilities. AccessText will be a conduit between publishers and post-secondary institutions' disability programs, and will serve as the national nucleus for post-secondary distribution of approved alternative textbook file exchanges, training, and technical support. It will be developed by the Alternative Media Access Center at the University of Georgia.

The American Printing House for the Blind (APH) will also collaborate with the AccessText Network to improve college textbook accessibility. The expectation of the joint project is to support students with disabilities transitioning into postsecondary environments. The focus of the collaboration will be linking the APH Louis database, which contains information on 200,000 titles in accessible formats for elementary and secondary school students as well as titles on the postsecondary level, with the AccessText Network, which offers colleges direct access to leading publishers.
 

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A nonprofit enterprise, Benetech, sponsors the Bookshare initiative in the United States of America. Bookshare was set up as an online community through which books that have been scanned by members and supporters can be shared with others who are visually impaired or otherwise print-disabled. This activity removes significant duplication of efforts and is possible because Bookshare can act under the special exception to rights in U.S. copyright law that permits, subject to certain conditions, the reproduction of publications into specialized formats for disabled people. Bookshare also obtains original digital copies of books directly from publishers and these, together with the files of scanned books, are converted by the organization into DAISY digital talking books and Braille Ready File (BRF) digital Braille. This accessible material is then distributed to schools, libraries and end users who have a print disability.

 

Bookshare follows a security strategy of seven elements to minimize the risk of abuse whilst maximizing the benefits to people with a disability. Briefly, these seven elements are:

• Users must show they qualify by supplying signed certification completed by an appropriate professional.
• Users must sign a contractual agreement forbidding copyright infringement by redistribution of material.
• Accessible copies include a copyright notice acknowledging the source and forbidding further reproduction or distribution and use by people who are not Bookshare users.
• Books are supplied with encryption and users are supplied with a custom decryption password which only decrypts content delivered for that user.
• Downloaded material is fingerprinted when it is decrypted by a user so that the source of any subsequent copyright violations can be traced.
• Bookshare maintains a database of all transactions, encryption codes and fingerprints.
• A security program monitors all transactions and can suspend a user detected to be undertaking excessive downloading or other unusual activity.

To date, Bookshare’s activities have largely been confined to supplying digital books within the U.S. as it is underpinned by the copyright exception. However, Bookshare is actively working to expand its operations to be able to circulate accessible books outside the U.S. territory. It already has global rights on over 10,000 titles granted by dozens of publishers and recently launched Bookshare India in partnership with Indian publishers and disability non-governmental organizations. Outside the U.S., Bookshare’s focus is on finding reliable local partners to handle disability certification, user support and local publisher relations. Bookshare’s experience of getting agreements with publishers has gained momentum, with the majority of titles on the New York Times bestseller lists typically covered by blanket permissions agreements. Bookshare has partnered with numerous university presses, often by agreeing to fulfill the legal obligations of publishers to provide accessible copies to post-secondary institutions. Where there has been active engagement in discussions, Bookshare has been quite successful in getting agreements. There are limitations, however, largely in getting into discussions in the first place.

 

 

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1 “Authorized entities” is the term used in the United States for trusted intermediaries
2 See 17 U.S.C. § 121
3 See AAP press release