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How does the Americans with Disabilities Act (ADA) affect copyright? What about a university library that reproduces a dissertation in a large-print or digital version for use by a visually impaired student?

Congress has never done anything to harmonize the Copyright Act and the ADA. However, section 121 of the Copyright Act permits "authorized entities" to make copies of nondramatic literary works in specialized formats for the blind or others with disabilities. The definition of "authorized entity" is somewhat problematic in this situation. The statute defines authorized entity as "a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities." Many academic and public libraries produce large-print or digital copies of works for the use of individual patrons who have disabilities. One can argue that if such a version does not exist, reproducing the work in a format that the patron can use falls under section 108(e) of the Copyright Act, which permits libraries to reproduce a substantial portion of a work or even an entire work after the library has tried to obtain a copy of the work at a fair price for the patron to use. The copy must become the property of the user, the library must have no notice that the work will be used for other than fair use purposes, and the work must contain the notice of copyright. Although currently the Copyright Act is silent about making a digital copy of a work in lieu of a photocopy, many libraries are doing so under the same conditions as they produce photocopies for users.

The school has acquired the Kurzweil system, which can scan text and read it back to a student who has visual learning problems. The license agreement for the Kurzweil product appears to put the burden for compliance with the law back on the consumer. Why is this? This is a quote from its "Notice of Copyright Responsibilities and Exceptions."

Some commentators believe that creating a computer-readable version of a copyrighted work for a visually or reading-impaired individual who owns a print copy, especially where the publisher does not itself make such versions available, is a fair use of that work. These guidelines are provided to help users understand that there are important legal issues involved when scanning print material.... It is the responsibility of the user to be sure that his or her use complies with the law.

Copyright compliance is always the burden of the user and not of the producer of equipment. Kurzweil could not realistically do otherwise than to put the burden on the user, because the company could not possibly know all of the uses to which the system might be put by a consumer. Further, the equipment likely has non-infringing uses as well.

On the other hand, scanning the text using the Kurzweil software for learning-disabled users appears to be a fair use. While a digital copy is made in order for the work to be read aloud, a court likely would find that this is fair use. If the copy is retained, it should be retained by the individual student and not by the library. Moreover, section 121 of the Copyright Act permits authorized entities (those with the primary mission of providing services to the blind or other people with disabilities) to reproduce and distribute copies of works in specialized formats exclusively for use by the blind or other persons with disabilities.

What is the difference between the composer's rights and royalties, those of the music publishing company, and the recording company?

Under U.S. copyright law, the copyright in a work initially vests with the author (i.e., the composer). The author is the owner of the copyright and is entitled to the exclusive rights provided under the Copyright Act: reproduction, distribution, adaptation, performance, and display. If the work in question is a sound recording, the owner also has the right of public performance via digital transmission.

The composer usually transfers to the music publisher only the rights of reproduction and distribution for the composition. The publisher then collects royalties for sales of copies of the sheet music and pays a share of the royalties back to the composer. Generally, the composer retains all of the other rights, such as public performance, and so continues to collect royalties for the public performance of his or her music. The composer typically signs a license with one of the performance-royalty-collecting agencies: the Association of Composers, Authors and Publishers (ASCAP), Broadcast Music Inc. (BMI), or SESAC Inc. They collect royalties for public performances of music and distribute them back to the composer.

A sound recording of the performance of a musical composition embodies at least two and sometimes three separate copyrights: the underlying musical composition, the recording of the performance of the music, and the arrangement of the music for the sound recording. The performer, who may or may not be the composer, normally transfers the copyright in the performance of the music to the recording company that collects royalties for the sale of the recordings. The composer is compensated for the sale of recordings through the mechanical license, a compulsory license under the statute. The composer normally continues to own the copyright in the musical composition, however.

When music is played on radio or television, royalties are paid to the composer in the form of a blanket license with the performance royalty organizations. There are no performance rights in sound recordings except for digital transmission. So, traditionally, the recording company makes its money from the sale of records and not from performance. But both the recording company and the performers share the royalties for digital transmission of sound recording (e.g., from webcasting).

A university produces a series of materials in which it owns the copyright. Later there is litigation (not over the copyright), during which the defense attorney asks for copies of the material. Must the university comply with the court order?

An institution must comply with a court order or it is guilty of contempt of court. Sometimes legal counsel may challenge the validity of a court order, but absent that, there is no wiggle room on compliance with the order.

 
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