[Federal Register Volume 74, Number 196 (Tuesday, October 13, 2009)]
[Pages 52507-52509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24539]



Copyright Office

Copyright Office Notice of Inquiry and Request for Comments on 
the Topic of Facilitating Access to Copyrighted Works for the Blind or 
Other Persons With Disabilities

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of inquiry and request for comments.


SUMMARY: The United States Copyright Office (Copyright Office) and the 
United States Patent and Trademark Office (USPTO) seek comment on 
possible solutions to enhance the accessibility of copyrighted works 
for the benefit of the blind or other persons with disabilities,\1\ 
including specifically the objectives and text of a draft treaty 
prepared under the auspices of the World Blind Union and proposed 
formally at the May 2009 session of the World Intellectual Property 
Organization's Standing Committee on Copyright and Related Rights. 
Interested parties are invited to submit comments on the topics 
outlined in the supplementary information section of this notice.

    \1\ Various terms are used formally and informally throughout 
the world. When inquiring about experiences within the United 
States, the term used in this Notice of Inquiry is that which 
appears in U.S. copyright law. See 17 U.S.C. 121(d)(2). There, the 
term ``blind or other persons with disabilities'' is defined to 
include individuals who are eligible or who may qualify to receive 
books and other publications in specialized formats in accordance 
with the Act entitled ``An Act to provide books for the adult 
blind,'' approved March 3, 1931 (2 U.S.C. 135a; 46 Stat. 1487).

DATES: Initial comments on the Notice of Inquiry and Request for 
Comments are due on or before November 13, 2009. Reply comments are due 
on or before December 4, 2009.

ADDRESSES: Notice of Inquiry and Request for Comments: The Copyright 
Office and USPTO strongly prefer that comments be submitted 
electronically. A comment page containing a comment form will be posted 
on the Copyright Office web site at www.copyright.gov/docs/sccr/comments and will be activated approximately two weeks prior to the 
comment deadline. The web site interface will allow commenters to enter 
required information into specified fields and upload comments as an 
attachment. In order to be accessible to visually impaired persons, all 
comments must be uploaded in a single file in either the Adobe Portable 
Document File (PDF) format that contains searchable, accessible text 
(not an image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or 
ASCII text file format (not a scanned document). The maximum file size 
is 6 megabytes (MB). The uploaded comment must include the name of the 
commenter. A browse button will facilitate submission of the completed 
form to the Copyright Office. All comments from this proceeding will be 
posted publicly on the Copyright Office web site. The name and 
organization of the commenter from the comment form

[[Page 52508]]

will be posted together with the entire attached comment document. 
Other information from the comment form will not be posted, but note 
that if the same information is included in the attached document it 
will be available on the Copyright Office web site as part of the 
attachment. If electronic submission of comments is not feasible, 
please contact the Copyright Office at 202-707-1027 for special 

FOR FURTHER INFORMATION CONTACT: Maria Pallante, Associate Register, 
Policy and International Affairs, or Michele Woods, Senior Counsel for 
Policy and International Affairs, by telephone at 202-707-1027 or by 
electronic mail at [email protected] or [email protected].


Background: The United States is a Member State of the World 
Intellectual Property Organization (WIPO) and an active member of the 
Standing Committee on Copyright and Related Rights (SCCR). An on-going 
focus of the SCCR is the topic of limitations and exceptions to 
exclusive rights, including limitations and exceptions for visually 
impaired persons. At its seventeenth session (November 2008), the SCCR 
stressed the importance of dealing ``without delay and with appropriate 
deliberation'' with the issue of facilitating and enhancing access to 
protected works.\2\ At the most recent (eighteenth) session of the SCCR 
(May 2009), the delegations of Brazil, Ecuador, and Paraguay formally 
introduced a proposal for a new treaty for the benefit of blind, 
visually impaired, and other reading disabled persons, based on text 
that was prepared under the auspices of the World Blind Union (WBU).\3\

    \2\ See ``Conclusions of the 17th Session of the SCCR,'' 
November 3-7, 2008, at http://www.wipo.int/edocs/mdocs/copyright/en/sccr_17/sccr_17_www_112533.pdf (last visited on Oct. 1, 2009).
    \3\ See ``Conclusions of the 18th Session of the SCCR,'' May 25-
29, 2009, at http://www.wipo.int/edocs/mdocs/copyright/en/sccr_18/sccr_18_conclusions.doc (last visited on Oct. 1, 2009).

    The treaty proposal would require the implementation of prescribed 
copyright exceptions and limitations, among other provisions. The 
stated purpose of the proposal is to ``provide the necessary minimum 
flexibilities in copyright laws that are needed to ensure.formats that 
are accessible for persons who are blind, have low vision, or have 
other disabilities in reading text, in order to support their full and 
effective participation in society on an equal basis with others, and 
to ensure the opportunity to develop and utilize their creative, 
artistic and intellectual potential, not only for their own benefit, 
but also for the enrichment of society.''
    Most notably, the proposal would permit the cross-border import, 
export and qualified distribution of copyrighted works in accessible 
formats without the permission of the rights holders, including to 
countries that presently lack, in their national laws, a specific 
copyright exception or other legal framework for serving the visually 
impaired. The proposal would also permit the circumvention of 
technological protection measures for the purpose of making works 
accessible. See Proposal by Brazil, Ecuador and Paraguay, Relating to 
Limitations and Exceptions: Treaty Proposed by the World Blind Union 
(WBU), submitted at the World Intellectual Property Organization 
Standing Committee on Copyright and Related Rights (SCCR), 18th 
Session, May 25-29, 2009 (available at http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=122732).
    The United States has long been a leader in the area of providing 
popular books, textbooks, magazines, newspapers and other materials to 
the blind, through the services of several trusted organizations, 
including the Library of Congress (National Library Service for the 
Blind and Physically Disabled), American Printing House for the Blind, 
Recording for the Blind & Dyslexic, and Bookshare.\4\ A statutory 
exception in the Copyright Act (Title 17), the so-called ``Chafee 
Amendment,'' permits these and other authorized entities to reproduce 
and distribute certain literary works in specialized formats 
exclusively for use by blind or other persons with disabilities. In the 
context of education, the Chafee Amendment operates jointly with the 
Individual with Disabilities Education Act (IDEA) of 2004, which allows 
publishers to create and distribute print instructional materials for 
elementary and secondary schools in a file format known as ``NIMAS'' 
(the National Instructional Materials Accessibility Standard). Another 
U.S. organization, the DAISY Consortium, has worked globally to 
establish the technical standards that are necessary to ensure 
interoperability of file formats and actual access by the blind, not 
only with respect to works made pursuant to copyright exceptions but 
also for works sold to visually impaired persons on the open market. 
More information on the DAISY Consortium is available at http://www.daisy.org/.

    \4\ The United States signed the United Nations Convention on 
the Rights of Persons with Disabilities on July 30, 2009. The next 
step is for the President to transmit a request to the Senate for 
advice and consent to ratification, accompanied by a treaty 
transmittal package. Article 30 of the Convention requires that 
``States Parties recognize the right of persons with disabilities to 
take part on an equal basis with others in cultural life, and...take 
all appropriate measures to ensure that persons with 
disabilities...[e]njoy access to cultural materials in accessible 

    In a floor statement at the eighteenth session of the SCCR (May 
2009), the delegation of the United States affirmed its commitment to 
working jointly with stakeholders to find ``timely, effective and 
practical solutions'' to further enhance the accessibility of protected 
works, taking into account the complex and interrelated issues of 
copyright law, business models, technology and human and financial 
resources. See Statement on Improving Accessibility to Copyrighted 
Works for Blind and Visually Impaired Persons, as Delivered by the 
United States of America before the World Intellectual Property 
Organization Standing Committee on Copyright and Related Rights (SCCR), 
18th Session, May 26, 2009 (available at http://www.copyright.gov/docs/sccr/statement/us-intervention.pdf). The United States stressed the 
importance of national consultations as a critical first step to 
addressing specific proposals within the SCCR. The United States 
reported at length on its formal and informal consultations with 
copyright owners, representatives of the blind, and the public, 
including a notice of inquiry (through which the public submitted 
written comments and reply comments) and a comprehensive public meeting 
that preceded the SCCR session. See Notice of Inquiry and Request for 
Comments; Notice of Public Meeting, 74 FR 13268 (Mar. 26, 2009); see 
also http://www.copyright.gov/docs/sccr/.
    To date, the U.S. consultations have demonstrated that although 
there are willing buyers and sellers of accessible works, concerns over 
rights clearances, downstream infringement, and high costs prevent the 
marketplace of accessible works from growing to its full potential. 
Additionally, the United States has learned that improved 
implementation of existing legal and regulatory provisions may be 
needed in order to maximize the accessibility of works to the blind and 
other persons with disabilities. But there are many challenges that do 
not pose questions of law. For example, better coordination between 
trusted organizations, educational institutions, and publishers could 
reduce duplication of efforts and lead to a better variety of titles in 
accessible formats. Respect for technical standards would improve the

[[Page 52509]]

interoperability of file formats and improve accessibility to hardware, 
including for refreshable Braille and text-to-speech capabilities. 
Clearer practices could help assuage delays in providing time-sensitive 
materials to some visually impaired students, particularly in higher 
education. Increased funding would help all of the above.
    At the international level, the WIPO Secretariat has endeavored to 
address practical obstacles to accessibility by creating an exploratory 
partnership between publishers and visually impaired persons, known as 
the WIPO Stakeholders' Platform. The Stakeholders' Platform is 
exploring the ``concrete needs, concerns, and suggested approaches'' of 
facilitating access. For example, one subcommittee has been working on 
a series of private sector guidelines and pilot projects related to 
trusted intermediaries and cross-border access for registered, 
qualified users. More information may be found at http://www.visionip.org/stakeholders/en/trusted_intermediary_guidelines.html.
    At the next (nineteenth) session of the SCCR (December 14-18, 
2009), the United States is committed to discussing the treaty 
proposal, as well as other relevant solutions.
    Documents from SCCR meetings, including documents regarding 
copyright limitations and exceptions for the blind and other persons 
with disabilities, can be found by starting at http://www.wipo.int/meetings/en/topic.jsp?group_id=62 and following the link to 
information for each specific meeting. A study on copyright limitations 
and exceptions for the visually impaired can be found at http://www.wipo.int/meetings/en/ doc_details.jsp?doc--id=75696. The treaty 
proposal is available at http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=122732.

Subjects of Inquiry: At this time, in order to allow further 
opportunity for interested persons to provide their views, the 
Copyright Office and the USPTO are seeking comments on possible 
solutions, both legal and practical, for enhancing the accessibility of 
copyrighted works for the benefit of visually impaired persons. In 
particular, the Copyright Office and USPTO are interested in learning 
about 1) how the treaty proposal would interact with existing U.S. law; 
2) how the treaty proposal would interact with existing international 
obligations of the U.S.; 3) the possible benefits of or concerns about 
the treaty proposal, including with regard to the objectives of the 
treaty proposal, how those objectives could lead to improved access for 
the blind and visually impaired, and any concerns about the 
implementation of the proposed treaty provisions in the U.S. or abroad; 
and 4) other possible courses of action that would facilitate access by 
``blind, visually impaired, and other reading disabled persons.''
    1. How would the treaty proposal interact with United States law 
under Title 17 or otherwise? The Copyright Office and the USPTO seek to 
learn interested parties' views on how the treaty proposal compares to 
U.S. law under Title 17, or any other statutory or regulatory 
provisions that might be affected. How consistent is the treaty 
proposal with current U.S. law? If the treaty proposal is adopted, 
would any changes to U.S. law be required in order to implement its 
provisions? Please reference with as much specificity as possible any 
U.S. statutes, regulations, or other provisions that should be 
considered in a review of the treaty proposal's implications on U.S. 
    2. How would the treaty proposal interact with the international 
obligations of the United States? Please comment on whether, and how, 
the treaty proposal would affect the existing multilateral and 
bilateral agreements of the United States. Please reference with as 
much specificity as possible the provisions of any treaties, 
conventions, agreements or other instruments that should be considered, 
as well as any conclusions or analyses that might be instructive.
    3. What benefits or concerns would the treaty proposal create? 
Please comment generally on the objectives of the treaty proposal, and 
how such objectives could facilitate access for the blind and visually 
impaired. Is the treaty proposal likely to meet its objectives? Would 
there be any legal or practical impediments to implementing the treaty 
proposal in the United States? What issues should the United States 
consider with respect to application of the treaty proposal in foreign 
    4. Other possible courses of action that would facilitate access by 
``blind, visually impaired, and other reading disabled persons.'' 
Please comment on any additional, possible methods of improving 
accessibility about which the Copyright Office and the USPTO should be 
aware, including possible roles for WIPO, the U.S. government, and the 
commercial and noncommercial private sectors.

    Dated: October 7, 2009.
Maria Pallante,
Associate Register for Policy
and International Affairs,
U.S. Copyright Office.
[FR Doc. E9-24539 Filed 10-9-09; 8:45 am]