Before we embark upon our analysis of the impact of copyright law on the current availability of described video content, and therewith to make recommendations for improvements to American copyright law to promote the accessibility of copyrighted works of all kinds, I first want to express appreciation to the groups and individuals who have made our work on this project possible. First and foremost, this report was prepared by the American Foundation for the Blind through the generous support of The Smith-Kettlewell Video Description Research and Development Center (VDRDC). The VDRDC identifies and develops innovative approaches for providing improved access to educational video for students with visual disabilities. However, many of the most promising tools and techniques involve developing new cloud-based technologies for facilitating creation and distribution of third-party description. Therefore, in addition to developing these technologies, the VDRDC considers it essential to identify potential policy and legislative issues related to their use.
The VDRDC is deeply appreciative of the Office of Special Education Programs (OSEP), U.S. Department of Education, for their financial support. This document was developed under a grant to the VDRDC from the U.S. Department of Education (H327J110005), however, this document does not necessarily represent the policy or perspective of the U.S. Department of Education and has in no way been vetted or approved by any agency of the federal government. Indeed, the analysis, conclusions and recommendations contained herein are my sole perspective and that of the American Foundation for the Blind (AFB). As such, this paper is intended to spark discussion, raise concerns, identify the most significant issues, and make general recommendations for future policy change. AFB is grateful to the VDRDC for commissioning us to undertake this important work.
Likewise, I know that the VDRDC is thankful, as am I, for the unwavering commitment to people with disabilities demonstrated by each of the organizational members of the Description Leadership Network (DLN). The DLN is a coalition of world-class organizations involved with the practicality, policy, and technology of blindness and video accessibility. Each DLN member organization contributes unique resources and perspectives to the partnership. The VDRDC relies upon the DLN members for assistance and advice in its research and development efforts, as well as its extensive outreach and dissemination activities. DLN's members include: American Council of the Blind, Arlington, VA; American Foundation for the Blind, New York, NY; Bridge Multimedia, New York, NY; CaptionMax, Minneapolis, MN; Described and Captioned Media Program, Spartanburg, SC; Dicapta, Longwood, FL; IDEAL Group, Hilliard, OH; Metropolitan Museum of Art, New York, NY; Narrative Television Network, Tulsa, OK; National Federation of the Blind, Baltimore, MD; Participatory Culture Foundation, Worcester, MA; The Accessible Planet, Northridge, CA; The Smith-Kettlewell Video Description Research and Development Center, San Francisco, CA. We look forward to working in full partnership with these and other leading voices in the disability and other communities to affect meaningful positive change.
I especially want to acknowledge the leadership of a few groups and individuals in particular. For decades, the National Federation of the Blind (NFB) has been an unyielding champion for people who are blind or visually impaired, and AFB has always highly valued our collaborative efforts in a host of areas. The NFB's relentless legislative and legal advocacy has communicated in no uncertain terms to the copyright ownership community that the inaccessibility of materials, from K-12 and post-secondary books and media, to the equipment being increasingly employed to buy and use such materials, will not stand. Along with our colleagues and friends in the American Council of the Blind (ACB), the NFB's unparalleled work to achieve an unprecedented binding international agreement among participating countries, concluded on the anniversary of Helen Keller's birth, June 27, in Marrakesh, Morocco this year, will ensure greater worldwide availability of accessible books of all kinds to people with disabilities who have, for too long, been victim to a very real famine in accessible knowledge and information.
Similarly, our partnership with ACB is long and rich, and I believe the blindness community has benefitted immeasurably from it in so many ways. AFB and ACB led the charge to enact the historic Twenty-First Century Communications and Video Accessibility Act (CVAA) which has already begun a revolution in telecommunications and video programming access for people with disabilities. ACB's championing of described television exemplifies the best in grass-roots activism, and we would not have the mandate on the top broadcast and cable networks to each provide fifty hours per calendar quarter of video description on TV without such advocacy. As the current Chair of ACB's Resolutions Committee, it was my privilege this past summer to help shepherd the adoption of the resolution concerning improvements to America's copyright law that the ACB membership is demanding. The full text of the resolution is reprinted in the appendix to this paper.
While I am commenting on organizations that have made a difference, I would like, at the risk of being labeled a toady, to take this opportunity to recognize my own employer's work to expand possibilities for people with vision loss of all ages. Particularly with regard to information and technology accessibility, I firmly believe that the trails that AFB has blazed for our community are leading to a more inclusive world for all of us. AFB's role in helping craft the contours of the so-called Chafee Amendment here in the U.S. laid the foundation for the international agreement that now benefits people with disabilities around the globe. AFB's drafting of K-12 textbook accessibility legislation, advocacy for video description, championing of the CVAA, and on and on are among the many achievements built on the firm foundation of work to enact and implement the landmark Rehabilitation Act and the Americans with Disabilities Act. I am proud to have offered, and continue to offer, whatever talents I may have to this impressive and growing track record. Each of these organizations, along with a number of others, have the thanks of our community for their leadership and investment of considerable human and financial resources to the accessibility of information of all kinds to people with vision loss.
No organization, however, can exist as a mere abstraction; they are nothing apart from the hard working human beings who constitute them. There are a few individuals that I would like to personally thank for their leadership, expertise and, whether they knew it or not, their mentoring and assistance to me in putting this paper together. First, I want to congratulate Blake Reid, Professor and Director of the Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, for his sterling work on the amicus brief submitted on behalf of the disability community in the HathiTrust case (discussed later in this paper). The cogent arguments set out in that brief illustrate all too clearly why there must be protection for the reproduction of mainstream works into usable forms by people with disabilities. In the brief, Blake catalogs industry's rather disingenuous and disjointed claims that requiring them to make their works accessible would be unduly burdensome, but, nevertheless, allowing others to take up that burden would deprive them of market benefits to which they are entitled. We rely on Blake's work in part during our discussion of the market impact analysis required by the fair use doctrine. Blake has also been a fierce advocate for people with disabilities before the U.S. Copyright Office and the Federal Communications Commission. For all you have done for the disability community, particularly the deafness and blindness communities, to break down needless barriers to our full participation in American life, thank you, Blake.
I also want to publicly acknowledge the significant contributions of Jaclyn Packer, Ph.D., a leading researcher in the field of video description. Dr. Packer wrote the seminal book, "Who's Watching: A Profile of the Blind and Visually Impaired Audience for Television and Video," which provided detailed information about the television viewing habits and preferences of people with vision loss and their interest in video description. Jackie has been a trusted go-to source for background on the beginnings, growth, current delivery, and usage of description. She has also provided valuable editorial feedback and advice for this project. As a former AFB staffer and current valued colleague, thank you, Jackie, for your faithfulness to people who are blind and for offering your tremendous professional capacity to our field.
Finally, I wish to express my heartfelt thanks and appreciation to Rashmi Rangnath, esq., formerly with Public Knowledge (PK), an expert in domestic and international copyright law, and as of this writing, providing independent legal counsel and consulting. Where I would dearly like to think of myself as a diligent and capable student of copyright law and policy, Rashmi could easily be the teacher. As my partner in this process, Rashmi has been a consistent source of expertise, a one-woman legal citator service, my personal law professor, a careful editor and contributor, and a simply brilliant, perfectly charming, and always reliable person to work with. If, dear reader, you find things in these pages to object to, credit me with those perceived errors and Rashmi with the balance of any material that meets with your unreserved approval. That having been said, I make no apology for the conclusions we have drawn at the end of the day. While I will leave bona fide copyright experts, among whom I am most certainly not numbered, to pass judgment on the accuracy of my analysis or the wisdom of my recommendations, both Rashmi and I intend that our hopefully thorough, occasionally entertaining, and ultimately provocative commentary and proposed solutions will stimulate the kind of constructive dialogue, rigorous debate, and stakeholder consensus that the just cause of full and equal knowledge and information accessibility for people with disabilities deserves.
Mark Richert, Esq. Director, Public Policy, AFB
On the third anniversary of the signing of the CVAA, October 8, 2013, Washington, D.C.