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Article Excerpt
ABSTRACT
Libraries for the blind developed as charities, circulating and producing, for the most part, Braille. Their seeking of copyright licenses to permit them to produce such books did not pose any particular threat to copyright holders and publishers. But as they started taking their places as libraries that rendered library services, and as technological developments enabled them to make and circulate accessible books in various forms to readers with different print disabilities, it became difficult for them to have to seek and obtain such licenses for a variety of reasons. Many governments therefore enacted statutory exceptions to their copyright laws to assist them. Some of those exceptions are considered here, with reference to their efficacy. Particular attention is paid to difficulties arising out of those exceptions as they impact interlending services. It is argued that those laws alone do not appear to be at the heart of the problems libraries for the blind experience with regard to interlending. Rather, the delivery of digital materials via the Internet, being entirely different from the delivery of books through interlending arrangements, is creating obstacles that require agreements with publishers, if they are to be addressed.
INTRODUCTION
In a letter published in the Times of London on December 2, 2005, Professor J. A. L. Sterling, of the University of London's Queen Mary Intellectual Property Research Institute, very aptly observed that "In the digital era, international copyright becomes an Augean stable requiring a jurisprudential Hercules to bring order out of chaos" (p. 24). In Greek mythology cleaning the stable of King Augeas was the fifth task set by Eurystheus for Hercules. This was not just an insurmountable task for a super stable hand: the Augean stable was the largest and filthiest in the then known world. The many goats and oxen that belonged to Augeas had lived there, in the biggest stable ever, without it ever having been cleaned. "The result was a mountain of filth and litter, which not even Hercules could clear away in a lifetime--not, of course, from want of strength, but from want of time" (Francillon, 1896). Professor Sterling was discussing problems arising out of Google Book Search. But he might as well have been responding to a catalog of problems, and the chaos they cause, that plague libraries for the blind with regard to copyright issues.
This article focuses on those problems and how they have come about. It also deals with steps that are being taken, both by libraries for the blind and by the international blindness movement, to resolve them. An appreciation of the nature of work typically undertaken by libraries for the blind, the social environment they operate in, and of how technological change has affected them is however necessary in order to place these issues in their proper perspective.
WHAT ARE LIBRARIES FOR THE BLIND?
General
"Libraries for the blind" has become something of an imprecise term, though it will be used throughout this article. It is a term that is nowadays used in respect to different types of institutions responding to ever-increasing and changing types of reading needs.
In an age of political correctness, the reference to "the blind" engenders a measure of discomfort even with those who habitually employ it. But it is a well-entrenched one. "Blind" has--probably without sound justification--become useful shorthand with which to denote varying degrees of lacking visual acuity.
Many such libraries use the term "blind" as part of their name. The South African Library for the Blind, the National Library for the Blind in the United Kingdom (NLB), the Danish Library for the Blind (DBB), and the Dutch Federation of Libraries for the Blind (FNB) are notable examples. Other such libraries are owned by institutions for and of the blind, for example, the libraries of the Canadian Institute for the Blind (CNIB), the Royal New Zealand Foundation of the Blind (RNZFB) and the Royal National Institute of the Blind (RNIB).
The "of" in Royal National Institute of the Blind and Royal New Zealand Foundation of the Blind is a reflection of changing perceptions and circumstances. It represents the notion that blind people have taken ownership of an institute that, in the past, had existed as a charity to serve and identify needs that they themselves are now both determining and serving.
Some institutions--whether by luck or good management is not important for present purposes--have what one might call more modern names, like the Korea Braille Library, the Library of Talking Books and Braille in Sweden (TPB), and Vision Australia Information and Library Service, to mention three examples.
Bookshare.org is a virtual library. It distributes electronic books only, which blind and other readers with print disabilities read with the assistance of computers. It has no premises that house shelves. Even its name suggests that all notions of format are irrelevant, though of course what is decidedly relevant is that there is no room for hardcopy books at Bookshare.org. It is not the contention here that Bookshare.org is a library--neither that it is not. Bookshare.org is an important phenomenon though. It is the logical consequence of doors that have been opened by the digital revolution to people who cannot read print.
Typically, libraries for the blind contend that their current members are not "the blind" per se but all readers with print disabilities (Kavanagh & Christensen Skold, 2005). In some instances the addition of more than blind beneficiaries of the services of those special libraries are reflected in names like the National Library Service for the Blind and Physically Handicapped of the United States Library of Congress (NLS) and, also in the United States, Recordings for the Blind and Dyslexic (RFB&D), formerly just RFB.
Braille and the Development of Libraries for the Blind
The adoption of Braille as a reading and writing medium of blind people has been the catalyst for the proliferation and development of libraries for the blind all over the world.
There were a few libraries and institutions that had made available to blind readers embossed books of various descriptions even prior to the adoption of Braille, for example, the Pennsylvania Home Teaching and Free Circulating Library for the Blind, established by Dr. William Moon and John P. Rhodes in Philadelphia in the 1880s, which contained materials written in Moon type, probably the most durable alternative to Braille (Mellor, 1998). In the late nineteenth century a few libraries for the blind had been established in the United States, but in that country no fewer than five tactile reading systems were in use then, which obviously served collection development poorly. In a letter to the New York Herald published on May 31, 1905, Walter G. Holmes wrote in part:
The raised type has given [blind people] a great power to entertain themselves and brighten their hours, but these books are so expensive that only a few of the blind can afford them. For instance Ben Hur in type for the blind costs $10.50. A few cities have libraries for the blind, but very few of the 100,000 blind in the United States have access to them. We are able to buy these books for my [blind] brother, and knowing the great pleasure they give him, my heart sighs for the many who do not have these books. (as cited in Mellor, 1998)
Helen Keller remarked in 1952, in a public speech at Louis Braille's reburial in the Pantheon in Paris together with other French national heroes that blind people owe Braille (1809-1852) what the world owes Gutenberg (Kimbrough, 2005).
Few people realize today that Braille had emerged only in the latter half of the nineteenth century only as the accepted alphabet used by blind people from among more than one contending medium. It was adopted in France in 1854, two years after the death of Louis Braille, soon after that in Switzerland, in the United Kingdom after 1870 only (Kimbrough, 2005)--in a process that culminated in 1905 (Mellor, 1998)--in Missouri (United States) in 1860, and in Boston in the 1870s. It took a long time, however, before Braille became the standard in the whole of the United States. Braille took root there over time. Only in 1932 was a more or less uniform system for English Braille adopted on both sides of the Atlantic (Mellor, 1998). To be sure, there had been tactile books and professional notation long before the invention of Braille, but they had been produced on a very limited basis for educational purposes and for individual professional needs only, like those of the blind concert pianist Maria Theresia von Paradis (1733-1808), for whom Mozart had written a piano concerto, and the blind Lucasian professor of mathematics at Cambridge, Nicholas Saunderson (1682-1739) (Kimbrough, 2005). Embossed books were used more widely for educational purposes; for example, in about 1784 Valentin Hauy, the father of the education of the blind, founded L'Institution Nationale des Jeunes Aveugles (The Institution for Young Blind People) in Paris as the first school for the education of the blind (Kimbrough, 2005). But the later advent of Braille and the devices with which to write it seem to have contributed to the development of book production and libraries for the blind into phenomena that could take their place alongside their more traditional peers because Braille was not, in the words of the blind French philosopher Pierre Villey, a system that "fell into the logical error of 'talking to the fingers in the language of the eye'" as cited in Mellor, 1998).
Libraries for the Blind as Charities
Early libraries for the blind were charities (Kavanagh & Christensen Skold, 2005). In 1932 Lord Blanesburg, chairman of the Ministry of Health Advisory Committee on the Welfare of the Blind in the UK, wrote about charitable work for the benefit of blind persons in these terms:
The affliction of blindness makes an irresistible appeal. The blind can count all men amongst their friends. Their claim upon everything that is chivalrous and selfless in human nature can never be denied. The record of agencies established, of benefactions made (for the relief of blindness, for the training of the blind in every variety of useful work, for placing at their service the treasures of literature, and enabling them to exercise their musical, literary, and artistic gifts, for their medical and other care) is a long one, and is confined to no period of history, to no country or continent. The list of those choice spirits who have devoted their lives to the care and education of the blind is as long, and it, too, is limited by no distinctions of race or of creed. In the result, the blind to an astonishing degree have been, and are being, helped to help themselves to be self-reliant and independent, foremost in some walks of life, prominent in many others, efficient in all. The resources now at their service, helped by that strange inward light which seems to cheer and inspire their physically darkened lives, have made of our blind friends to-day the good citizens that they are. (Wagg, 1932, foreword)
Tactile media did not for long remain the only means by which blind people could read. The advent of sound recording technology enabled agencies that, in the words of Lord Blanesburg, placed the treasures of literature at the service of blind people in the form of so-called talking books--that is books that were read by humans and recorded for later use in electromagnetic form.
PRODUCING BOOKS UNDER LICENSE
The charitable institutions that were to supply blind people with books obviously had to produce those books themselves. Even now, at the beginning of the twenty-first century, both book circulation and book production are considered core activities of libraries for the blind (IFLA Libraries for the Blind Section, 2006). Libraries for the blind are the re-publishers of content in respect of which others--whether authors or publishers or both--hold the copyright. Books for the blind are made accessible to them. In one sense they are copies of the originals, but they are copies to entirely different forms; thus, in another sense they are republications or new editions of those works.
In its most basic sense, copyright embodies the entitlement of the holder thereof to control the circumstances under which the content to which it pertains may be copied, in whole or in significant part. In order to make an accessible copy of a work, a library for the blind or any other producer of that accessible copy must, therefore, obtain a license from the copyright holder that permits it to do so. Otherwise, however laudable the purpose of making an accessible copy, the accessible copy is an infringing copy, that is to say a copy that infringes on the copyright of the right holder. It stands to reason, then, that since the time of their inception, libraries for the blind would, in the main, have done the honorable thing and requested the copyright holder's permission or license to produce--with or without the payment of royalty--an accessible copy or edition of a work for use by blind people. By and large, licenses were granted.
No doubt the charitable nature of the enterprises requesting such licenses served as an incentive to rights holders to agree to such licenses. But the fact that books for the blind were typically produced in specialized formats played no small part in reaching those decisions. Braille is not a medium that can be put to commercial use. A Braille book, produced for circulation purposes by a library, is unlikely to be sold to the prejudice of its original publisher. It cannot be read by those members of the public who typically buy books. And, most significantly, it cannot be copied byway of a photocopying process. Publishers therefore took no significant risks when granting licenses to libraries for the blind to have Braille books produced for use by blind people. They were being produced in an obscure code, to be enjoyed by people who were perceived as basically needy.
The development of audio recording techniques, which enabled the production of talking books, gave rise, for the first time, to the prospect of the commercial use of books especially produced for reading by the blind. A recording of an audio or talking book could, in theory, be accessed by any member of the public. It could be enjoyed like any other dramatic production that is meant to be listened to only. Like blind people, sighted people also routinely listened to and greatly enjoyed productions, whether of music, poetry, or anything else of mass interest. All that was required was access to the necessary playback equipment. Technology started to emphasize the commonalities between blind people and their sighted counterparts. In a sense, all tools or technologies are invented to overcome barriers or disabilities, whether environmental or physical, so it is not so strange that this development, as others would do later, brought the possibility of solving the problems of blind people within the purview of mainstream technology. But in the context of talking books it was in the interests of publishers especially, but possibly also of the charitable institutions who depended on the alien qualities associated with blind people to raise their funds, that the reading needs of blind people should not be mainstreamed. Doing so would have opened up potential areas of risk to the publishing industry. It raised the spectre of unauthorized use of materials created for the blind by sighted people who possessed the requisite technology.
It is small wonder, then, that producers of literature for the blind took to using specialized recording means. Books recorded on vinyl records were typically recorded at a number of revolutions per minute not commonly used by the producers of commercial records. In later years, audio cassettes were often recorded at half the speed at which commercial tape recordings usually played, and the channels used for stereo recordings were used for the recording of altogether separate sound tracks. In some instances specialized audio cassettes were developed by some libraries for the blind.
Those specially produced sound recordings had one common feature: they could not be enjoyed without the use of specially developed equipment, which was not commercially available. Reading those books was akin to reading Braille in the sense that what was required...
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