Digitizing Copyrighted Works to Facilitate Access is Fair Use in 2nd Circuit Decision
Wednesday, June 11, 2014
Posted by: Denise Marshall
In June of 2013 COPAA joined the Association of Higher Education and Disability (AHEAD) and several other organizations in filing an amicus brief in the United States Court of Appeals for the Second Circuit in Authors Guild, Inc. v. HathiTrust. The brief emphasized the policy reasons in federal law for affirming the district court decision that creation of digital copies of copyrighted works in nonprofit university libraries constituted fair use of the works under 17 U.S.C.S. § 107 since the use for scholarship and research was transformative with purposes of superior search capabilities rather than actual access to the copyrighted works, and facilitating access for print-disabled persons. Jo Anne Simon of Jo Anne Simon, P.C., with the help of Mary J. Goodwin and Amy F. Robertson, authored the brief. COPAA Amicus Committee members Leslie Margolis, Victoria Sulerzyski and Selene Almazan assisted with revisions.
In its opinion yesterday, the Court of Appeals for the Second Circuit held that the members of the HathiTrust Digital Library can “create a full-text searchable database of copyrighted works and provide those works in formats accessible to those with disabilities.” Digitizing copyrighted works for the purpose of creating a full-text searchable database is not copyright infringement, because it is a “fair use” of those works that is protected by copyright law.
Providing individuals with print disabilities full digital access to those copyrighted works — text and images — is also “fair use” under the Copyright Act and consistent with U.S. Supreme Court precedent. The Second Circuit also referenced Congress’ intent in the Americans with Disabilities Act to “‘assure equality of opportunity, full participation, independent living, and economic self-sufficiency’” for individuals with disabilities. As we discussed also in our amicus brief, with the Chaffee Amendment, Congress intended “that copyright law make appropriate accommodations for the blind and print disabled,” expanding protections, not limiting them as the Authors Guild and other plaintiffs argued. Pointing to the great need for accessible text, the court noted that “‘the number of accessible books currently available to the blind for borrowing is a mere few hundred thousand titles, a minute percentage of the world’s books.’”
In addition, the court held that three of the authors’ associations — Authors Guild, Australian Society of Authors, and Writers’ Union of Canada, were properly dismissed from the lawsuit. These third party associations do not have standing to bring copyright infringement suits on behalf of their individual members.
COPAA congratulates our colleagues with the National Federation of the Blind and their attorneys at Brown Goldstein & Levy who intervened in this matter, and AHEAD for giving us an opportunity to fight for increased access for individuals with print disabilities.