One of the great things about the release of the Digital Learning white paper has been the comments that are coming in from diverse readers who heard about it from someplace online. Case in point: Mike Duigou, who e-mailed me to say that the problems we reported sounded familiar to him from a different context: “the implications of copyright policy and DRM with regard to alternative media (braille, audio records, electronic editions, etc.) and disability.” He continues (quoting with permission):
Copyright, fair use and DRM have very important implications for the disabled and there are a number of ongoing actions and policy initiatives which are probably worth investigating. In particular your comments regarding “Undue caution by gatekeepers such as publishers or educational administrators.” could be extended to include anyone responsible for providing alternative media.
Mike then pointed me toward links (here and here) explaining an incident in May when the National Library Service, an arm of the Library of Congress that produces alternative media for the vision-impaired, suddenly suspended its Web-Braille service. Web-Braille provides online digital delivery of Braille e-books that blind readers can then convert into tactile print using special equipment. The service is accessible only to approved and registered users. A little-known section of copyright law allows an “authorized entity” to make copies of copyrighted material in “specialized formats exclusively for use by blind or other persons with disabilities.”
At first, the NLS simply posted the following terse notice:
Because of technical and security difficulties, Web-Braille will be unavailable in the near future. NLS regrets the inconvenience and will provide further information as soon as possible.
The nature of these “security and technical difficulties” was mysterious to many blind readers and bloggers, and NLS’ initial response to further inquiries was evasive. Daily Kos launched a campaign over it, the blind community got up in arms, and the NLS quickly reinstated the program. That’s when NLS clarified the “technical and security” problem: it thought it had detected copyright infringement.
It’s not clear to me how likely it is that infringers would be able to copy Web-Braille works and redistribute them to sighted readers on any large scale. Maybe there was some blind infringer out there who registered for the progam and then translated Web-Braille files in order to poach copyrighted material. But I am skeptical, and whatever NLS says now, its unwarranted caginess at the outset undermines their credibility about what really happened. (Kind of a more benign version of this situation). Besides, the statutory carveout provided by Congress should cover Web-Braille, with its specialized format, its registered users, and its authorized entities. So it seems likely that Mike has identified another over-cautious gatekeeper.
In addition, one of the security measures NLS put in place to prevent such infractions in the future is “a monitoring procedure to track all access to the Web-Braille system.” Most librarians will fight tooth and nail to ensure the privacy of patron records, but it seems that blind patrons now will have their selections monitored. (If there are appropriate safeguards on the data this might be acceptable, like tracking overdue books — but again, it is hard to tell and NLS has not been forthcoming.)
So, even with a quite broadly written special copyright provision that immunizes conduct intended to help disabled people read, it seems that key gatekeepers are unduly meek in their behavior. It is a cautionary tale for those (myself included) who believe a more robust statutory exception for educational uses of content might insert some spine into educational institutions that currently adopt overly conservative positions.