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.

Disability issues within the workplace

The following is a guest post from Simon Barnett. Simon Barnett writes for Disability Sanctuary, an online community for disabled people and their carers. He examines a number of issues and looks to add to the wider debate.

Entering the workplace environment can sometimes seem daunting, but an increasing number of employers are becoming more aware of disability issues and are keen to take positive action. There’s undoubtedly been a realisation that a failure to recruit those with disabilities means that businesses can miss out on vital resources.

It’s still fair to say, however, that experiences do vary. Some employers seem unable to grasp what real equality means and there’s often a lack of awareness about their legal obligations. This can undoubtedly cause some difficulties, given that few individuals want to be put in the position of pointing out such obligations at an early stage in the employment process. On the other hand, by being afraid to speak out, there’s the very real risk that you won’t be dealing with a level playing field.

Good employment practices

The onus is certainly on the employer to understand how they are required to act. In many cases, of course, this simply involves a certain amount of common sense. You may find that you spend some time educating your work colleagues at the outset, with the aim of making relationships considerably easier in the long run.

With this in mind, it’s useful to understand exactly what it’s reasonable for you to expect from an employer. Looking at UK law, there’s very clear guidance:

“It is discrimination to treat a disabled person unfavourably because of something connected with their disability (eg a tendency to make spelling mistakes arising from dyslexia). This type of discrimination is unlawful where the employer or other person acting for the employer knows, or could reasonably be expected to know, that the person has a disability.”

The above may seem to many of us to be little more than an expression of common decency. If an employer is unable to behave in line with the above, then it’s likely that there will be significant issues within the workplace for any employee, including those with disabilities.

But the law also goes much further. Employers are instructed to make reasonable adjustments to both jobs and workplace environments, in order to make life easier for those workers with disabilities. This most obviously involves ensuring that a disabled worker is given time off, where such time is required for specific medical treatment, or for appointments relating to assessments.

As might be expected, provision is also made for ensuring that equipment is suitably modified. If you’re working within an office environment, for example, then it’s reasonable to expect that suitable desks and chairs should be provided. In addition, you might also expect to be provided with additional aids, if those are required to ensure that you can do your job efficiently and safely.

Why it’s important to understand your rights

By understanding your rights, you are in a much better position to outline your expectations and to discuss potential problems, before they arise. It’s understandable, however, that there may be a level of concern about disclosing details of a personal nature to a senior member of staff.

I think that there are two elements to consider here: firstly, an employer cannot reasonably be expected to make allowances, without having a full understanding of your disability. If there are areas where you have some limitations, then you’ll need to declare these to your employer.

That may, of course, seem incredibly daunting. Fortunately, the law is on your side here: the second point that I would make in this area is that the employer has a legal obligation to keep any details of your disability confidential, unless you suggest otherwise.

Conclusions

In practical terms, I would suggest that this should mean that you can speak openly about your requirements, safe in the knowledge that you are having a confidential conversation. You may be happy for your employer to discuss some elements of your conversation with other members of staff, but that’s very much your choice.

Many issues can be resolved before they become significant problems. My own experience suggests that the key is to have good two-way communications between the employer and the employee. This limits the room that’s available for misunderstandings and ensures that there’s clarity within the working relationship.

About the Author

Simon Barnett works on the Disability Sanctuary website, providing insights on a range of issues to those with disabilities, carers, friends and relatives. He aims to provide practical advice, helping to ensure that individuals are receiving the assistance that they are entitled too. He’s particularly concerned about the complexities of the current disability benefits system. Having previously worked as the editor of a finance website in the UK, he’s keen to offer clarity in such areas.

Help DREAM respond to the public consultation on Article 9 – Accessibility of the UN Convention on the Rights of Persons with Disabilities

UN Human Rights Office of the High Commissioner Logo

UN Human Rights Office of the High Commissioner Logo

The DREAM network will be responding to the Committee on the Rights of Persons with Disabilities’ general comment on Article 9 – Accessibility.

We would be honoured if you would join with us in making this contribution to the Committee. Therefore we invite you to send a formal statement or informal comments, thoughts, ideas, etc. by November 15th to anthonyg@nova.no so that we can take advantage of this opportunity.

We will compile the comments and draft and distribute our response to the consultation in January 2014.

The general comment outlines the normative content, state obligations, and inter-sectional issues related to accessibility.

If you have any questions, please don’t hesitate to to leave a comment, and thank you for your contribution!

Developing Europe’s policy skills to advance disability rights

DREAM featured as success story by EU Directorate General for Research, led by Commissioner Máire Geoghegan-Quinn. The following is an excerpt of the story featured on the EU Directorate General for Research website.

Most Member States of the European Union (EU), and the EU itself, have ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). However, while the Convention will mark a major advance both for disability rights and also for European business, the necessary changes to turn it from vision into reality will not happen overnight. Adopting the Convention imposes numerous legal obligations on signatories affecting many areas of daily life.

In the words of the DREAM (Disability Rights Expanding Accessible Markets) project coordinator, Professor Gerard Quinn of the Centre for Disability Law and Policy at the National University of Ireland (NUI), Galway: “EU Member States need a lot of new skills and competences to drive this forward.”

The article concludes stating with a quote from the DREAM project coordinator, Gerard Quinn.

“The researchers are already developing a common instinct for where the opportunities for change may lie, and indeed they are starting to create that space themselves. It is beautiful to watch,”

“The phrase I use to sum it up is ‘policy entrepreneurship’ – developing people who can really bring about change that transforms the lives of our citizens with disabilities,”

The remaining article may be found at the EU Directorate General for Research website.

DREAM Launches Disability Rights Digital Bibliography

As a joint project between researchers at NUI Galway and DREAM, the Disability Rights Digital Bibliography seeks to provide a single point of contact for academic references in disability rights. The bibliography was compiled based on individual contributions from researchers in seven research institutions throughout Europe. The bibliographies were established based on the thematic interests of the researchers and represent a wide array of areas impacting disability in Europe and internationally. Each bibliography is available as an accessible Microsoft Word document as well as a Research Information Systems (RIS) format which can be imported into most reference management software applications.

  • All Bibliographies
  • e-Accessibility – Word / RIS
  • Disability Rights and the CRPD – Word / RIS
  • Disability Theory – Word / RIS
  • Indicators and Monitoring of Human Rights – Word / RIS
  • Legal Capacity – Word / RIS
  • Medicalization of Disability – Word / RIS
  • Methodology for Research Disability – Word / RIS
  • Non-Discrimination – Word / RIS
  • Treaty Interpretation – Word / RIS
  • Web Accessibility – Word / RIS

We want to encourage our users interested in contributing further to this initiative to contact Suzanne Doyle or Anthony Giannoumis

A permanent link to the bibliography can be found at NUI Galway.

Signed, Sealed and Delivered: WIPO Treaty for the Blind Sets Historic Precedent for Accessibility to Published Material

This article is a reprint of a story published at G3ict.

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled has officially been approved. A jubilant Abigail Rekas writes in from Marrakesh about this historic precedent that will now allow greater access to published material for persons with print disabilities.

The feeling here in Marrakesh is one of joyous relief. The tension and frustration over the last week at the WIPO Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities have melted in the hot Moroccan sun. Whether it was the heat or the words of Stevie Wonder, requesting that the delegates ‘Sign, Seal and Deliver’ a treaty to benefit blind and print disabled persons, delegates on both sides of the issue found flexibility and were able to compromise and deliver a consolidated draft text that was adopted by the Conference on June 27, 2013. It will be open for signature on June 28, 2013.

History has been made. This is the first international intellectual property treaty on user rights. Never before have exceptions and limitations to enable access been mandated. This treaty is a blending of Human Rights and Intellectual Property. It implements, for the very first time, the principle laid out in theInternational Covenant on Economic, Social and Cultural Rights Article 15(a) and 15(b), that everyone has a right to access cultural materials. It is a first step to realizing United Nations Convention on the Rights of Persons with Disabilities, Article 30 that intellectual property regimes should not be an unreasonable barrier to access to cultural materials.

Music icon Stevie Wonder urges UN forum to sign, seal, deliver treaty for visually impaired

Image: WIPO Director General Francis Gurry (left) and music legend Stevie Wonder in 2010. Photo: WIPO/Emmanuel Berrod

There were four concepts that almost prevented this treaty from coming into existence. The 3-Step Test, Commercial Availability, Digital Rights Management/Technical Protection Measures, and Translation were extremely tough knots to untangle. Thursday, June 27 these issues seemed almost insurmountable, and emotions were running high.

Fortunately the pressure to conclude a treaty forced flexibility from delegations and the facilitator appointed to address these issues was able to find compromise between the various positions. An excellent discussion of the resolution of these issues can be found at the webpage:http://infojustice.org/archives/30032.

This treaty is the culmination of the work of many passionate advocates, particularly of the World Blind Union, the Royal National Institute of the Blind andKnowledge Ecology International. They have been the face of the campaign for this treaty, and have spent years working with the delegations of various countries to create a text that actually enabled access to books rather than just paying lip service to the idea.

The Beijing Momentum coupled with what the representative of Group B called the Marrakesh Spirit (that of collaboration and cooperative attitude) and facilitated by the WIPO Secretariat has lead to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. It has not been an easy road. The Representative of the Government of Morocco commented that this treaty is the first of a new generation of treaties and collective efforts.

The Miracle in Marrakesh was greeted with a standing ovation. Stevie Wonder will perform. This treaty will change the lives of the blind, visually impaired and otherwise print disabled persons around the world as it is implemented. The focus must now shift to implementation of this treaty and the active sharing of books across borders.

Source: G3ict

Active Citizenship and Fiscal Innovation

DREAM principle investigator Gerard Quinn reflects on the role of fiscal innovation in achieving active citizenship for persons with disabilities as a part of an EU funded project, DISCIT – Making Persons with Disabilites Full Citizens.

The video is closed captioned in English, and the transcipt is available for download in Word and PDF.

DREAMing of 2012

WordPress.com prepared a 2012 annual report for our blog.

image of fireworks and skyline

Here’s an excerpt:

600 people reached the top of Mt. Everest in 2012. This blog got about 4,400 views in 2012. If every person who reached the top of Mt. Everest viewed this blog, it would have taken 7 years to get that many views.

Click here to see the complete report.

Inquiry into the Accessibility of Research Technology

Note: this post is an extension of an earlier post Disability Researching

image of a Railroad punch card computer 1967

It’s difficult for me to conceive of a world where research was conducted by hand. I’ve heard stories of interview transcripts housed in enormous filing cabinets, and statistical analysis conducted with carefully ordered punch cards on machines that could fill an entire building. But being a member of the information age, it often doesn’t occur to me the fantastic benefit my work receives with the aid of the Internet and computers.

However, regardless of the power or the potential of this technology to make my life as a researcher a bit less process-laden. It still falls short of providing that facility on a universal scale. The latest versions of popular research software programs (e.g. Nvivo, SPSS, SAS) are incredible examples of how far our abilities have come in our capacity to examine the world’s problems. From sociology to microbiology to archaeology our level of scientific discourse is enabled by these tools.

Gaining the knowledge and ability to use these tools can be a challenge. But when the design of these tools leave out persons who have the knowledge and abilities but lack the sensory capacity to use these tools, we limit not only the chances of those persons to contribute to their own development but their chances to contribute to the development of knowledge and science.

These observations are based both on my own experience using this technology as a person without a disability, but also on the state of the existing research (of which practically none exists concerning accessible research technology). So I think if we value the contribution of science, and if it is important that its role in our society reflects the diversity of the human experience. Then it is critically important to design these tools we use to examine our world to include persons with disabilities.

A Conversation about Apples

In the IT world, I think there are basically four philosophies

  1. The vegetarian: Owns an Apple because they are shiny and healthy
  2. The carnivore: Owns a Windows PC because they can be taken apart, ground up and eaten with a bit of mustard
  3. The omnivore: Owns an iPad, Android phone, Windows desktop and Macbook and consumes them all simultaneously
  4. The vegan: Lives on Linux alone

""Of course this is an exceedingly inappropriate stereotypical and mostly useless typology, but the point is that persons who love technology typically have very strong feelings about its purpose, function and role in their life. Sure there are cases of ambivalence, but people who are passionate about technology can usually find one faction or another to ally themselves with.

Where this breaks down is with accessible technology. I’m remiss to say that people aren’t passionate about accessible technology, but I’ve yet to see an online forum that captures the vindication, dogmatism and zealousness that is sometimes seen on technology blogs and user forums. Now granted, this may be a good thing since creating accessible technology is something of a collaborative effort, bringing in people who create the technology, people that use the technology, and people that would like to use the technology.

Now this limited passion approach for creating accessible technology may be due to the lack of a villain. There’s no one touting the awesomeness of inaccessible or unusable technology. There’s no one saying “Hey check out my new phone, it took me six weeks and I had to read the entire 4,682 page manual to figure out how to make a phone call!” In fact, I think most technology producers are aware of accessibility, especially in terms of usability. But I think what’s missing is the rivalry, or the belief that my technology is better than yours because EVERYONE can use it. And perhaps that’s why Apple has become a leader in this field, because part of their belief structure revolves around using elegant solutions to solve complex problems. It just happens that those solutions are in the form of accessible computers and phones.

Note: this post was inspired at least partially by the presentation by Simon Sinek for TED