Update If youre not part of the solution youre part of the problem.

. (1967 VISTA recruiting slogan) Well I can only offer part of the solution to part of the problem but it is better than nothing. See Addendum #2 below my subsequent reply still awaiting moderation. *** Please note that this comment -- with different pronouns was sent to the principal authors of the ARL Fair Use Best Practices as noted in their acknowledgements. The comment below is still awaiting moderation one later submitted comment has been posted. http://blogs.library.duke.edu/scholcomm/2012/02/02/fair-use-ferment/ John E. Miller says: Your comment is awaiting moderation. February 3, 2012 at 6:54 am I am not an attorney; I am a US Library of Congress Certified Braille Transcriber and founder of a 501c3 non profit 121authent.org. I work as a practitioner involving both domestic and international copyright law on a daily basis. From: ACCESSIBILITY, THE CHAFEE AMENDMENT, AND FAIR USE page 1 http://www.arl.org/pp/ppcopyright/codefairuse/accessibility.shtml It also suggests that there is clear authority for treating the preparation and making available of accessible copies as a fair use under Section 107. This authority is found in the House Report on the Copyright Act of 1976, which states that the making of copies or phonorecords of works in the special forms needed for the use of blind persons as a special instance illustrating the application of the fair use doctrine. One might question whether what (using the exact wording) would properly be considered a fair use under Section 107 refers to works where the original has already been purchased by or is otherwise in the legal possession of the intended (blind) user. The fair use exception implied in the entire paragraph which was not to quoted in total may just as well be referring to the Section 106(2) right to

derivative works which in 1976 was the sole right of the copyright holder. The HR 1476 paragraph might not as you seem to imply be referring the right of reproduction and distribution as in Section 106(1) which would still require the permission of the copyright owner. In the paragraph above amongst other conditions of the text it specifically leaves out the phrase the making of a single copy or phonorecord by an individual which occurs in the last sentence of the paragraph. Why? One might also question if there is such clear authority as is suggested by the ARL document why there was a need for the Chafee Amendment in the first place. I have worked with Braille groups that for decades preceded the 1996 enactment of Section 121 and I can tell you from some of their (horror) stories if such was the case as of 1976 that they did not then need written permission from the publisher to make embossed paper Braille copies it surely would have been news to them. Persons who prepared the ARL document are all librarians and/or attorneys used to dealing with source material. When the legislative history of a Federal Statute is readily available, I do not see the need to edit, paraphrase, and possibly quote out-of-context this one paragraph of an important document. The entire paragraph HR 1476 at page 73: Another special instance illustrating the application of the fair use doctrine pertains to the making of copies or phonorecords of works in the special forms needed for the use of blind persons. These special forms, such as copies in Braille and phonorecords of oral readings (talking books), are not usually made by the publishers for commercial distribution. For the most part, such copies and phonorecords are made by the Library of Congress Division for the Blind and Physically Handicapped with permission obtained from the copyright owners, and are circulated to blind persons through regional libraries covering the nation. In addition, such copies and phonorecords are made locally by individual volunteers for the use of blind persons in their communities, and the Library of Congress conducts a program for training such volunteers. While the making of multiple copies or phonorecords of a work for general circulation requires the permission of the copyright owner, a problem addressed in section 710 of the bill, the making of a single copy or phonorecord by an individual as a free service for a blind persons would properly be considered a fair use under section 107. Addendum One of the Best practices principal authors is also involved with the NFB request to join as a Defendant the Authors Guild v. Hathi Trust case. In their legal memo

they claim that the Hathi Member University Libraries qualify as authorized entities under Section 121. I responded with the following: http://laboratorium.net/archive/2011/12/12/gbs_related_cases#comment-69640

Addendum #2
John E. Miller says: Your comment is awaiting moderation. February 4, 2012 at 6:56 pm Rather than trying to elicit Section 107 clear authority through a selective and tortuous interpretation of the Report for HR1476 as provided in its entirety above, academic & research libraries might find more practical solutions to the issues raised in Best Practices Principle FIVE through the Factsheet released by the NLS in 1996: Copyright Law Amendment, 1996: PL 104-197 December 1996 What does authorized entity include? To the extent that authorized agencies and organizations use or delegate authority to volunteers, special education teachers, and commercial producers under government contract to produce and distribute works under the exemption, those activities appear to be fully covered by the exemption. Such individuals can be said to be agents of authorized entities and are, therefore, acting under implied authority. http://www.loc.gov/nls/reference/factsheets/copyright.html RE P L Y