Celebrating Fair Use

Fair Use logoThe Second Circuit Court of Appeals in the United States struck a blow for fair use on 10 June, 2014. A panel of three judges affirmed the ruling of District Court  Judge Harold Baer, Jr in Authors Guild of America, et al v. HathiTrust, agreeing that full text search and providing accessible format copies of works for print disabled persons were both fair use.

The Appeals Court vacated Judge Baer’s ruling on preservation, as Judge Baer did not consider whether the plaintiffs had standing to make the claim, and  remanded to the District Court for further consideration. Further, the Court held that the Authors Guild does not have standing to bring the claim on behalf of American authors, although certain foreign Authors collective rights management agencies do. Lastly, the court affirmed the decision that the Orphan Works Project (dealing with books that have uncertain copyright status, where the rights holder is indeterminate or cannot be located), which has been on hold since before the District Court opinion, was not ripe for adjudication at this time.

The HathiTrust Digital Library is a partnership of several academic and research institutions that, along with Google, have endeavored to digitize their collections. These digital collections will then be accessible for full text word search, displaying the number of times a word or phrase appears and on which pages, but not the actual text of the document. The collection will also provide full text accessible format books for print disabled persons. Lastly the collection was intended to provide a digital archive of the partner libraries’ collections.

The Appeals court decision came quietly, with little fanfare, with little to no mention in the mainstream media, all but ignored by everyone except stakeholders, technologists and lawyers. It has been primarily reported by blogs. Those of us who have been following the HathiTrust case since the District Court decision in 2012 (or since the inception of HathiTrust) were thrilled by this major victory in the fight for fair use, accessible cultural materials and access to knowledge.  Publishers and authors groups were less thrilled.

An interesting facet of this decision was that although the Second Circuit opinion affirms the finding of fair use, it disagreed with the District Court reasoning that creating books for persons with disabilities was a transformative use. Judge Baer, in his HathiTrust decision asserted that to him, providing books for persons with disabilities was a transformative purpose, as the publisher did not intend to enter the accessible book market. The Appeals Court likens accessible formats to translations of a work into another language, which creates a larger audience for the book, but is not transformative. However, whether a work is transformative is not the end of the fair use determination. They find fair use on a number of other grounds, including the Supreme Court Decision in Sony Corp of America v. Universal City Studios, the Chafee Amendment granting specific permission for the making of accessible format copies of books and the Americans with Disabilities Act.

This decision also specifically addresses the accessibility of images and diagrams, which had not been authoritatively discussed before. The accessibility of images is of vital importance, particularly in education. The work of the DIAGRAM Center at Benetech, which is pioneering making images accessible for persons with disabilities, has been provided a valuable legal support in this opinion. The Court points out that the image files contained in the archive allow persons with disabilities the ability to manipulate the image to make it accessible (i.e. add contrast or enlarge), which they could not do with a text only file.

This decision, while quietly received, is terribly exciting, at least for those of us working on issues of accessibility of cultural materials. This is a substantial leap forward in sheer numbers of accessible format books. The HathiTrust Digital Library strikes a serious blow to the long standing book famine, where annually between 1-7% (depending on where in the world you are living) of all books published are translated in to formats accessible to persons with disabilities. It contains more than 10 million accessible volumes. That is something to celebrate.

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