September 16, 2014

HathiTrust Verdict Could Transform University Access for the Blind

While the verdict in the Authors Guild v. HathiTrust case has been widely hailed for its impact on how libraries can handle digitization for search, the findings on access for the print-disabled may lead to even more profound changes in practice. On an Association of Research Libraries (ARL) webcast, Daniel F. Goldstein, counsel of the National Federation of the Blind (NFB), said the decision could revolutionize university services to their blind and print disabled students. LJ caught up with Goldstein to explore in more detail what the verdict means and what role university libraries might play in implementing the changes.

According to Goldstein, up until now, many colleges and universities have re-digitized the same books over and over, on demand, for each blind or print-disabled student that needs them. It’s a process that “presupposes semesters geological ages long… I’ve talked to a blind student some years ago at Princeton who got her first materials for her microbiology class three days before the final,” Goldstein told LJ. “By the time the blind student shows up, if you haven’t already made the information available, it is too late.” Universities followed this cumbersome procedure because they weren’t sure they were legally allowed to retain the scan.

It also meant that there wasn’t time to do anything to improve the quality beyond the minimum, because “every semester the disabilities services office is like a baby garter snake trying to swallow a chicken,” said Goldstein. “If you take Great Expectations, it’s really easy to make an accessible copy. There’s no complicated layout: Dickens didn’t use footnotes, graphs, or sidebars. But the more complex the print book is, the harder it can be to create an accessible digital copy from a print copy,” Goldstein explained. Tagging of illustrations, for example, must be done by hand.

Now that the HathiTrust verdict has held that digitizing works for the purpose of providing access to the blind and print-disabled is not only a fair but a transformative use, schools can feel safer hanging onto those scans until the next student who needs them comes along, and can spend their efforts on improving them or scanning more books, instead of doing the same bare minimum of texts over and over. And Goldstein believes making the text available to sighted persons to crowdsource the manual work would also be fair use.

Interlibrary Loan on Steroids

Even more revolutionary than just keeping their own book scans, the Honorable Harold Baer, Jr., held that the University of Michigan libraries can be considered an authorized Chafee entity. That means the library could make digitized collections available not just to the university’s own blind and print disabled students, or even to blind and print disabled students at other colleges, but to any American who qualifies as blind or print disabled under the Chafee amendment.

Up till now, there have only been a handful of Chafee entities, including The National Library Service for the Blind and Physically Handicapped from The Library of Congress, Learning Ally, and BookShare. (Public domain books, such as those provided by Archive.org, don’t require a Chafee exemption.) To qualify as a Chafee entity, you have to be a nonprofit or governmental entity and have as a primary mission the reproduction and distribution of books in specialized format exclusively for use by the blind and print disabled. What Baer held is that the Americans with Disabilities Act’s and the Rehabilitation Act’s legal requirement that libraries make their digital collections available to people with disabilities is enough to count as such a primary mission. So now, said Goldstein, “Every library with a digital collection could be a Chafee entity if they choose.”

Unlike ADA compliance, Chafee participation is voluntary. However, even if only a fraction of colleges and universities choose to do so, they will drastically increase the number of institutions and hence, available books. And in practice, there’s likely to be little downside to adding books the schools are scanning anyway to a larger accessible corpus. Because, unlike standard library practice for the sighted, loaning a book to a blind or print-disabled person across the country need not prevent the library from loaning the same book, at the same time, to a student right across the street.

The Chafee amendment doesn’t specifically address this issue one way or the other. But Jim Fruchterman, founder of BookShare, told LJ, “We, and I believe our peer authorized entities share this practice, do not have a 1:1 correspondence. 1000 kids with qualifying disabilities can download the latest Harry Potter or Hunger Games book that we’ve created from a single print book (or received directly in digital form from the publisher)… Schools and other groups can also produce hardcopy Braille materials from a single master and give them to multiple students as well. Part of the reason this isn’t an issue is because we operate under an exception that has no requirement for royalties/remuneration. How Michigan (and one assumes, other similarly situated institutions) implements Chafee is up to their discretion, but I would assume this court case and the practices of the major national authorized entities would give their counsel a lot of comfort about going in this direction!”

For libraries interested in becoming a Chafee entity but not sure where to start logistically, Fruchterman said BookShare would “love to help with the possibility of extending these library services beyond each university community.”

It’s even possible that the reach of the books could be international. The World International Property Organization (WIPO) is working on a treaty which would make it obligatory for countries to allow copyrighted printed published works to be converted into an accessible format for people with visual and reading disabilities and shared around the world without seeking permission from the copyright holder. Though the U.S. has been a stumbling block, according to the Washington Post, in October the organization announced it had “reached a breakthrough decision on how to complete negotiations” on the pact.

Moving Disability Services to the Library

As institutions shift from on-demand production to offering access to their entire digital corpus—whether to only their own blind and print-disabled students or more widely—at least some of the mission is likely to shift from disability services to the academic library, a development Goldstein sees as positive. “I hope so,” he said, “because I think there’s probably no entity in an educational institution that better understands and is more committed to access to information than librarians.”

Such a shift would be very much in line with the recommendations of the recently released Report Of The ARL Joint Task Force On Services To Patrons With Print Disabilities, which said in part, “the growing demand for instructional e-content and burgeoning digital library collections requires greater collaboration amongst all institutional partners, including academic leadership, research libraries, disability services, and information technology services.” The report also recommended that research libraries “aggressively assert fair use in support of accessible services for the print disabled.” For those that choose to follow this advice, the HathiTrust verdict has given them a strong leg to stand on.

This article was featured in Library Journal's Academic Newswire enewsletter. Subscribe today to have more articles like this delivered to your inbox for free.

Meredith Schwartz About Meredith Schwartz

Meredith Schwartz (mschwartz@mediasourceinc.com) is Senior Editor, News and Features of Library Journal.

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Comments

  1. There is nothing to indicate in the totality of Section 107 that there could be a set of circumstances for which ‘fair use’ would apply to a Party A but under the same set of circumstances not apply to a Party B.

    If it is OK for a University to invoke ‘fair use’ — ADA or otherwise — to make accessible copies of copyrighted material for someone who is print disabled, it is OK for anybody to invoke such fair use. Unlike Section 121, there is no Section 107 fair use provision as to what constitutes a print disability nor who might be an ‘authorized entity’.

    Joe’s Muffler Repair could start a service of ‘free’ accessible copies of copyrighted material for someone who is print disabled while-you-wait thus entering the realm of handicapped parking placards.