2008 U.S. Copyright Office Memo concluded that export of accessible works is not legal under U.S. law

In briefings about the WIPO proposal for a treaty for persons who are blind or have other disabilities, the U.S. government has sent mixed signals regarding the legality of exporting of accessible works created under exceptions in U.S. law. In some informal briefings and conversations, the U.S. government has said such exports are allowed under U.S. law. At other times, they say they are not.

KEI has obtained a June 12, 2008 memo from the U.S. Copyright Office, written by Neil Conley to David Carson, that analyzes the possible extraterritorial effects of the Chafee Amendment.

The Chafee Amendment is the name associated with Section 121 of the U.S. Copyright Act (17 USC 121) that provides for exceptions to the exclusive rights granted to copyright owners for persons who are blind or other people with disabilities. This section provides that: “[I]t is not an infringement of copyright for an authorized entity to reproduce or distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by the blind or other persons with disabilities.” “Specialized formats” is further defined to include “braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities,” as well as a more limited exception for large print. The exception does not require the permission of, nor the remuneration to, copyright holders.

The U.S. government lawyer was basically tasked with analyzing the possibility to export to foreign countries/territories works in accessible formats produced by the National Libracy Service (NLS) under the Chaffee Amendment. Specifically, the case concerned the Freely Associated States (FAS), former colonial possessions, and one of the issues analyzed is the status of the FAS for the purposes of the Chaffee Amendment. The author of the memo concluded that the FAS were considered “foreign” as they were “essentially, independent, self-governing foreign territories with their own governments and constitutions.”

The memo further concluded that the Chafee Amendment exception does not apply outside the U.S. and that “[foreign countries/territories] must acquire copyright permission from rights holders … [to have access to works produced by National Library Service (NLS)] because an exemption under U.S. copyright law is applicable only within the United States…”.

The legal memo did not address the legality of the export of accessible works under international copyright law, and focused its analysis only on the U.S. statutory law.

In making its argument, the lawyer said:

“The Chafee Amendment, i.e. section 121 of the U.S. Copyright Act, does not apply extraterritorially. It is an ‘undisputed axiom that United States copyright law has no extraterritorial application.'[17] Therefore, the Chafee Amendment and its exemption to copyright protection would not apply in a territory outside of the United States and its territories. The Ninth Circuit in Subafilms, for example, held that an activity occurring outside of the United States is not an infringement of U.S. copyright law, even though the activity, if committed within the United States, would constitute infringement.[18] It would seem to follow, therefore, that an exemption under U.S. Copyright Law would not apply outside of the United States”. (citing: Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d 1088, 1093 (9th Cir. 1994))

And concluded:

“Based upon the foregoing information, I would recommend that U.S. copyright law does not apply in the FAS. Therefore, the FAS is required to acquire copyright permission from rights holders in works received by the FAS pursuant to copyright exemptions under U.S. copyright law, e.g. the Chafee Amendment.”

The memo is available here.