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Background

The free national library program of reading materials for visually handicapped adults administered by the National Library Service for the Blind and Physically Handicapped (NLS), Library of Congress, was established by an act of Congress in 1931. The program was expanded in 1952 to include blind children, in 1962 to include music materials, and in 1966 to include individuals with physical impairments that prevent the reading of standard print.

From the beginning, this program was dependent upon the cooperation of authors and publishers who granted NLS permission to select and reproduce in special formats copyrighted works without royalty. Although many factors influence the length of time it takes to make a print book accessible in a specialized format, the period required to obtain permission from the copyright holder has sometimes been significant.

Public Law 104-197

Under the Legislative Branch Appropriations Bill, H.R. 3754, Congress approved a measure, introduced by Senator John H. Chafee (R-R.I.) on July 29, 1996, that provides for an exemption affecting the NLS program. On September 16, 1996, the bill was signed into law by President Clinton.

The Chafee amendment to chapter 1 of title 17, United States Code, adds section 121, establishing a limitation on the exclusive rights in copyrighted works. The amendment allows authorized entities to reproduce or distribute copies or phonorecords of previously published nondramatic literary works in specialized formats exclusively for use by blind or other persons with disabilities.

The act making appropriations for the Legislative Branch for the fiscal year ending September 30, 1997, sets forth the Chafee amendment as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that . . . and for other purposes, namely:

(a) IN GENERAL--Chapter 1 of title 17, United States Code, is amended by adding after section 120 the following new section:

"SEC.121. Limitations on exclusive rights: reproduction for blind or other people with disabilities

"(a) Notwithstanding the provisions of sections 106 and 710, it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.

"(b)

(1) Copies or phonorecords to which this section applies shall--

"(A) not be reproduced or distributed in a format other than a specialized format exclusively for use by blind or other persons with disabilities;

"(B) bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement; and

"(C) include a copyright notice identifying the copyright owner and the date of the original publication.

"(2) The provisions of this subsection shall not apply 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 descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.

" (c) For purposes of this section, the term--

"(1) 'authorized entity' means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;

"(2) 'blind or other persons with disabilities' means individuals who are eligible or who may qualify in accordance with the Act entitled 'An Act to provide books for the adult blind', approved March 3, 1931 (2 U.S.C. 35a; 46 Stat. 1487) to receive books and other publications produced in specialized formats; and

"(3) 'specialized formats' means braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities.".

(b) TECHNICAL AND CONFORMING AMENDMENT--The table of sections for chapter 1 of title 17, United States Code, is amended by adding after the item relating to section 120 the following:

"121. Limitations on exclusive rights: reproduction for blind or other people with disabilities.".

Questions and Comments Raised by the Chafee Amendment

What is the effective date of the amendment?

H.R. 3754 does not specify an effective date. Therefore, the effective date is September 16, 1996, the date on which the president signed the bill.

Are the provisions of the amendment retroactive?

The exemption covers all nondramatic literary works protected by copyright regardless of when they were first published, but reproduction and distribution under the exemption must take place on or after September 16, 1996, the effective date of the amendment.

Does the amendment cover periodicals?

The new exemption covers "nondramatic literary works"; section 101 of title 17 includes "periodicals" within the definition of "literary works." Therefore, the amendment covers periodicals.

If a book is involved in litigation, will the exemption apply?

Nothing in the Chafee amendment withdraws the exemption in case of litigation. However, in the event that NLS is notified that a federal court has issued a final decision, holding that the work is an unauthorized publication and recall of copies is required, NLS will withdraw all copies of the infringing work.

Is a published script of a play considered a "nondramatic literary work?"

A published script of a play would be considered a "dramatic work" or alternatively a "dramatic literary work" and would be outside the amendment, which covers only "nondramatic literary works." Therefore, NLS will continue to seek permission from the copyright holders to reproduce and distribute plays.

What does "authorized entity" include?

The amendment defines and limits "authorized entity" to "a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities." A "nonprofit organization" is understood to mean an organization that has been granted nonprofit tax exemption under section 501(c)(3) of the Internal Revenue Code.
To the extent that authorized agencies and organizations use or delegate authority to volunteers, special education teachers, and commercial producers under government contract to produce and distribute works under the exemption, those activities appear to be fully covered by the exemption. Such individuals can be said to be agents of authorized entities and are, therefore, acting under implied authority. The activities of individuals not connected to those specialized agencies and organizations fall outside the exemption.

Is copyright permission required for works published simultaneously in the United States and elsewhere?

All works protected by U.S. copyright law, including those first published abroad or in multiple editions published in several countries, are subject to the exemption for activities undertaken by authorized entities within the United States. Section 104 of title 17 sets out the eligibility requirements for U.S. copyright law protection. For further information, obtain Circular 38a from the Copyright Office.

NLS produces braille and recorded versions of books published and copyrighted abroad. Under the Chafee amendment, will permission from foreign copyright holders be required?

All works protected by U.S. copyright law, including those first published abroad, are subject to the exemption. Thus, permission from foreign copyright holders for reproduction and distribution in the United States under the exemption is not required. If the braille or recorded versions of the books were distributed outside the United States, however, such act of distribution would not be covered by the exemption since U.S. copyright law has no extraterritorial effect. Since NLS loans material to eligible foreign agencies, NLS will continue to request permission for all books and periodicals published outside the U.S.

Must foreign agencies who purchase NLS books continue to obtain copyright clearance?

Foreign agencies who purchase NLS books must continue to obtain copyright clearance. The principle with respect to this is the same as described above. The exemption applies only to activities within the United States.

Will foreign countries still be able to purchase magazines that NLS produced in special formats?

As the previous answer indicates, the exemption will not apply to activities conducted abroad. Therefore, foreign agencies will have to seek their own individual written copyright permissions from the copyright holders before NLS will permit the purchase of copies of master recordings of audio magazines reproduced by NLS under the new exemption.

No, this is not required. The "all rights reserved" copyright notice originated in the Buenos Aires Convention of 1910. The effect of this Convention in the United States has always been unclear. Since the United states joined the Berne Convention in 1989, there clearly is no need to include this statement.

Does "bear a notice" refer only to announcements or does it include the print label affixed to all copies and phonorecords?

Section 121 of title 17 has two notice requirements; it provides that the copies or phonorecords produced under the exemption shall (1) "bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement," and (2) "include a copyright notice identifying the copyright owner and date of the original publication."
The copyright law has contained notice requirements for many years; those requirements have always been understood to mean a written notice. The previous copyright law contained a provision that said "copies of the work shall bear the symbol © accompanied by ... " Thus, the use of the word "bear" has been understood to mean that the copies have affixed to them a written copyright notice. In the 1976 copyright act, sections 401 and 402 of title 17 provided for the placement of a notice of copyright on visually perceptible copies and on the surface, label, or container of phonorecords of sound recordings.
Consequently, NLS will (1) include both of the required notices, in print, on all braille copies and on all phonorecords of sound recordings, and (2) include both notices in audible form on all sound recordings.

Does "specialized format" include the NLS-produced instructional music cassettes recorded at the standard commercial speed of 1-7/8 ips rather than NLS's customary 15/16 ips speed?

The exemption does not include music, nor does it cover recorded material that is not in a "specialized format."

NLS compiles a music magazine containing articles reprinted from national periodicals. Are magazines that are produced in large print, braille, and recorded formats covered by the exemption?

The exemption defines "specialized format" as "braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities." Works reproduced in large print are, therefore, not included under the exemption.

Where should questions concerning the Chafee amendment be directed?

Questions originating from the media should be directed to the Library of Congress Public Affairs Office at (202) 707-2905. Contact the Library of Congress Copyright Office Public Information Office at (202) 707-3000 for other general questions.

NLS currently lends books through interlibrary loan (ILL) to foreign agencies serving blind and physically handicapped individuals. Will this practice continue, or will ILL be limited to books for which NLS has received copyright permission?

NLS will continue to lend to eligible foreign agencies through interlibrary loan. Such distribution is permissible under U.S. law and is unlikely to infringe the laws of other countries.
However, foreign agencies must look to the law of the country where the use takes place to determine whether they might be liable for acts of unauthorized importation or distribution of lawfully made copies without permission of the copyright owner.

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Posted on 2010-08-25