Libraries, technology and VIPs: some unexpected barriers to availability

Graham Cornish

International Librarianship Column

Victoria Spain, Column Editor "Our eyes. Let us look upon each other before/They are shut." This image from the poem, The Life of Love, conceived by renowned author, Kahlil Gibran (Wolf, 1958),reminds me of an experience years ago at The American Federation of the Blind Annual Convention. I was attending as the Librarian for Handicapped Services(position title before the Americans with Disabilities Act), in a previous position. One of the attendees asked if she might touch my face to learn my features. At first hesitant, I then experienced an intimacy uncommon between sighted persons, who rely on words and facial expressions. My blind colleague insisted it was all right to use the word "see" in my conversations with her. My several years of close experience with many blind and visually impaired persons,including in my own family, left a permanent positive impression.

Poetic images may be temporary solace to the inner eyes of those with vision impairments, numbering approximately 150 million people worldwide. Of these, approximately 38 million people are legally blind. World Health Organization (WHO) experts predict that worldwide visual impairment will double by the year 2020, partly due to our aging world population. The data reveals that more than 90 percent of all blind people live in developing countries and that more than two-thirds of blindness is either preventable or curable. To help curb these disturbing trends, WHO is calling for a global initiative-"Vision 2020" ­ a "right-to-sight" program to involve international organizations, industry, governments, and non-governmental organizations in helping to prevent some types of blindness and visual impairment (McGregor, 1999; "300 million", 1997; Thylefors, 1998).

With the burden of disabling eye diseases on the rise, libraries serve an increasingly important role as agencies of information for the visually impaired and the individuals and organizations assisting them. In many countries, persons with visual impairments have access to the new adaptive technologies, which aid them to participate in society in ways not dreamed of only a few years ago: "For it is primarily through the use of computers that our target population will be fully integrated into the mainstream library environment" (McNulty and Suvino, 1993). Obstacles, however, still exist.

Graham Cornish, Copyright Officer at the British Library http://222.bl.uk/,has a long association with the challenges facing libraries in the European Union striving to serve visually impaired persons. Cornish has been responsible for copyright issues within the British Library since 1983. Since 1986, he has managed much of the British Library's involvement in the International Federation of Library Association (IFLA), for whom he acts as Director of the Universal Availability of Publications (UAP) Programme. Cornish is a member of the United Kingdom's Library Association Council, and Chairs the International Sub-Committee. He has been elected a Fellow of the United Kingdom's Library Association and the UK's Institute of Information Scientists. His educational background includes studying theology and history at Durham, and library and information science in Liverpool before joining the (now) British Library in 1969. He has held a variety of posts in different parts of the British Library ranging from storage and retrieval to administration and research. Cornish has published numerous journal articles and nine monographs, especially on copyright, document supply, audiovisual materials, services for the visually impaired, and national libraries. His book, Copyright: Interpreting the Law for Libraries, Archives and Information Services (Cornish, 1999), is considered a standard work in this rather narrow field. Cornish is closely involved in several European Union projects on electronic copyright management and now heads the IFLA Committee on Copyright and Other Legal Matters.

Visual impairment

The almost stunning developments in the high-tech world that are rapidly changing the face and role of the library and librarians forever have other benefits that are often overlooked by those working in "mainstream" information science. One group of information users for whom benefits are substantial and could become of even more value in the future is visually-impaired people (VIPs).

The term"visually-impaired person" has all the disadvantages that negative descriptions enjoy in general. Any term which attempts to lump together a group of people who have less or different vision from the "standard" naturally masks the vast differences which exist in such a group. The problems may range from total blindness, through low vision, partial vision in one eye to chronic mystagmas,retinitis pigmentosa and many other much rarer conditions. Each such condition has different requirements to enable the person concerned to use print materials at the same level as those without such impairment. This range of conditions requires an equally wide range of solutions, some of which raise challenges not often considered by those not closely involved in these issues.

Although this segment of the user society may be perceived as rather small, actual figures are impossible to come by. Braille users certainly can be counted as they require a specific format; their numbers are definitely very small as a total of any population. Those with other visual impairments are much more difficult to identify. Firstly, many people in this category do not register formally with any agency. Secondly, there is an increasing number of people who, although they would deny they had a visual problem, do in fact benefit from and actually use much of the technology being developed specifically for those who do recognize their problem.

The role of the library

All persons, regardless of their physical conditions, should have access to information on an equal basis and failure to deliver this equality is a major concern for libraries, which,traditionally, have been champions of anti-discrimination, whether on grounds of race, color, creed, belief, or physical or mental ability. The Universal Availability of Publications (UAP) Programme of IFLA (International Federation of Library Associations and Institutions) long held that its goal was any document to any person at any time and in any place and several years ago added a fifth dimension: in any format necessary to facilitate use (Cornish, 1991). Of course, this element of UAP goals does not relate only to VIPs but also to documents on microfiche (where libraries do not always have readers) or those only in electronic format where there is no access to a CD-ROM player, let alone a Website. The library in its broadest sense is essentially there to exercise a"neutral" role for both information suppliers and users. The library does not market specific information products, nor does it favor any group or class of clientèle but serves both without fear or favor. This neutrality is an essential part of the library culture and is especially important for those who may require some assistance in maximizing their use of various resources.

Library materials

The problems facing VIPs in the library will depend on the types of material the person wishes to use. Undoubtedly the paper elements of any library collection are the most difficult to make available. As this still represents the majority of library holdings,the vast majority of materials held in libraries of all kinds are difficult, if not impossible, for VIPs to use in the form in which they are generally made available. Even those without sight problems often have difficulty with the paper versions of Science Citation Index or OAG World Airways Guide!Material in electronic form has the advantage that, once a suitable form of magnification or auditory translation has been installed on the terminal being used, most textual works can be transformed for use.

There continue to be major problems with visual works including images and, of course, icons. Material already in audio format naturally is of great benefit to VIPs but the quantity and scope of this material is very limited, either to leisure materials or occasionally academic text or major reference works. Similar limitations of scope apply to Braille which is expensive to create and, more importantly, slow to produce so that currency becomes a major problem. So the basic challenge is to transform something from a format in which it is not accessible to the user to one that is. How obvious can you get? But how is this to be achieved and why is it a problem?

Technical solutions

The number of technical solutions to some of the problems mentioned earlier is as wide-ranging as the problems. Probably the most non-technical is the hand-held magnifier which solves problems for many VIPs without much intervention by library staff,especially if VIPs bring their own equipment with them. This question of intervention is very important for VIPs. We are all aware of the resistance users often demonstrate to seeking help to use the library catalog, especially if it is online! So it is not surprising that VIPs often fail to use library services because they cannot do so without some kind of mediation or assistance. The question of intervention is one of the most common barriers, and a lot of work is needed to educate VIPs to be able to use technology more independently.

Probably the next least technical solution is to change the lighting of the area in which a work is to be used. This may require brighter lighting, especially where paper documents are to be used, or reduced light may be needed for a computer terminal. Such a terminal may, in its turn, require modification in terms of the color of the display or contrast on the screen. A corollary to what has been said earlier about education is to design it so that it can be used independently. There is little point in having a terminal where contrast can be changed if the user has no idea how to achieve this. Even the labeling on some PCs is difficult to read and so bars the VIP from exercising independent control.

More technical in nature is the magnifier which is essentially a scanner and which displays the work being consulted on the PC screen. This enables the user to combine adjustments in the size of the print with contrast and even color. The usual perception is that black on white is the easiest combination to read but different people, and even the same person in different chemical or mental states, may require quite different contrasts. Although red on blue is generally difficult to read for most people, this may be the saving contrast required in a specific circumstance.

Once a document has been scanned, then many solutions to the problems of VIPs may be found. The form of the output can easily be determined by the user rather than the producer. A digital file can be output as large print, Braille, Moon[1], audio, or any other format devised in the future. Similarly, having mounted a digital document on a PC, it is perfectly possible to make it available through a Braille bar to those who are quite unable to use print of any kind. The Braille bar is already quite well developed. Alternative formats such as these are quite expensive to create and some countries have a union catalog of such items to avoid unnecessary duplication of effort and also provide speedier access to them for individual users ("Unity", 1997). Work is well underway to make such catalogs available to individuals in their homes or at workstations. A complete union catalog of books in, for example, Genoa (Italy) is available in some libraries in the city,either through a Braille bar on the PC or as synthesized speech, depending on the needs of the user. This is currently being developed by a European Union(EU)-funded project on union catalogs for blind people, TESTLAB, involving a number of partners from EU member states (TESTLAB, 1997).

Legal issues

There is a great deal of good will towards groups of people who have some difficulty in using any of the tools of daily life that most people take for granted. This is certainly true of VIPs, and it may come as something of a surprise to learn that many of the solutions proposed above to make material more readily accessible are being thwarted by a variety of legal issues. Most often these relate to copyright which is the bedrock of all creativity, but which is quite capable of hindering access to information in its widest sense if not properly managed and understood.

Copyright law is national in character and it is therefore dangerous to make too many generalizations,especially since copyright is viewed very differently in the Anglo-Saxon and Continental (Roman) legal traditions. However, it is generally true to say that copyright law does not often distinguish between different formats in which documents are made available. A "document" is a very broad term and may be a traditional piece of text, an artistic work, audio cassette, videotape, or CD-ROM. The general principles of copyright apply to all formats, and it is often up to the lawyers to try to interpret how the rules apply in the electronic context. "Copyright" is something of a portmanteau term in that it covers a wide range of rights including the right to copy, perform, broadcast,adapt, translate, and issue copies to the public, and well as lend or rent a work in some countries. In most countries the owners of copyright have an exclusive right to do any of the following acts to a work which they have created:

• copy;

• distribute to the public;

• perform, show, or play;

• broadcast;

• adapt or translate.

Different legislations offer additional rights, but these five form the basis of most national copyright law. In the European Union, copyright law also covers two new rights­ Publication Right and Database Right ­ and may be expanded to include other rights (see below).

Copying

Copying is the basic right given by copyright law. Most libraries have large quantities of material in their collections which they would like to make more widely available, and there is a great temptation to have this material digitized initially for preservation purposes but ultimately to improve access. Once the work is digitized then output can be in many different forms which could be of great benefit to VIPs. Digitizing is fairly easy to do and some very attractive information packages could be created in this way. However, it must be remembered that copyright exists, so to create a digital copy of a work not only is a breach of copyright but may be issuing copies to the public, a quite separate right which the copyright owner exercises and this would therefore also be an infringement. Doing this may infringe the rights not only of authors but of publishers in some countries. Of course, creating a Braille or audio copy from a printed text is copying and, surprisingly, not allowed in many countries of the world. The whole question of duration of copyright is complex and outside the remit of this article. It is worth noting, however, that by creating a digital copy of an old work which is out of copyright, it is possible to create a new copyright work which may qualify as a database under new EU law and as a compilation under some other legislations. In most countries copyright cannot be extended or renewed,although both have happened in the EU and in the USA. The creation of databases containing out-of-copyright material may well be a device used by some information providers to protect works which have fallen into the public domain.

Although everyone thinks they know what "copying" means, there are an increasing number of situations where copying takes place, of which the user is quite unaware. For example, it is not possible to view a work on the computer screen without making a copy of it. Copying is an act which the copyright owner controls so it has been argued that, even though someone is a legitimate user of an electronic work, viewing the work may require additional permission from the owner. Fortunately, the EU legislation (Directive 96/7) explicitly states that conditions which prevent the normal use of the electronic work are not legal. It has to be remembered,however, that owners enjoy more than one right under copyright and what may be allowed in the context of "copying" may be prevented under other areas of copyright control. Owners have other rights such as broadcasting, performing,and distributing, all of which may have stricter controls than simply copying.

Distributing copies to the public

Distributing copies to the public is not the same as publishing. Publishing is just one facet of the right of distribution. In some jurisdictions, the word "publishing" is considered an umbrella term which includes communicating to the public and transmitting a work. These rights are often separated from publishing in law. Although digitizing a work and then making it available to specific uses of a library may look like "delivering copies to the public", it is not seen as such in law,mostly because this right applies only to original copies (this phrase "original copies" underlines the need for different terminology!) and not to copies made of originals. But it may apply to lending and rental in another context.

Lending and rental

Lending is not a right enjoyed in all countries, although rental usually is. If we think in electronic terms for VIPs, these rights may not seem relevant at first glance, but this is far from true, especially within the EU where libraries may lend anything in their collection provided they charge no more than the cost of administering the loan. As documents are made increasingly available in electronic format, this right to control lending will considerably hinder supply of documents in the conventional sense of lending.

But is "lending" in a truly electronic world a meaningful term? Electronic signals are not "lent";they are transmitted. How then could this concept be of relevance in a networked environment, for example? "Lending" means allowing use of an object by one person and, at the same time, depriving the original owner of access to the same object. Clearly, if someone lends a colleague a pen, the original owner cannot use it at the same time! Electronically this is now possible (Cornish, 1996). A library which subscribes to or creates an electronic source could transmit all or part of that material to a VIP user and block access to it from the original library. The VIP could be allowed to output in any form necessary and, after a limited time the block could be removed, but access by the remote user would then be denied, mimicking exactly the traditional lending model. Whether this could be done under the law or only by contract is still a long way off being decided, but this is certainly a possibility.

Performing

At first sight the idea of performance having anything to do with supply of materials for VIPs seems rather strange. However, the documents we supply are, or soon will be, no longer a matter of simple text and images (Cornish, 1993) but consist of a complex range of materials including sound, moving images, computer software, and anything else that can be digitized as well as text and images. The transmission of such material may subsequently cause it to be viewed or heard by the end-user or even a group of end-users with the result that the work is "performed". This issue is further complicated by the fact that performers have rights in what they perform regardless of the copyright status or permissions gained from the original copyright owner.

Database right

The database right, or sui generis right as it is called in some countries, is curently a specifically EU phenomenon, although recent discussions in the World Intellectual Property Organization (WIPO) have heightened awareness of the problems related to databases. At the moment, WIPO is unlikely to conclude a world treaty on this topic because of the many different views being expressed about it. However,from the point of view of services to VIPs, the new concept of a database right is important. Because databases (or collected works) are protected differently in different countries ­ the UK requires a low threshold of originality,Germany has a high threshold, and databases appear not to be protected in either the USA (Davis, 1991) or Canada (Simcoe, 1998) ­ the EU has decided to harmonize the legislation. Once implemented, the content of a database will be protected by copyright only if the contents are original and meet other copyright criteria. The database as a collected work may be copyright (if it is the original work of the author); otherwise it will be eligible for a new database right.

To qualify for protection such databases must display investment of effort in either selection,presentation, or verification. The data must also be organized in a systematic or methodical way and each item must be accessible separately, but there is no requirement for the database to be electronic in form. Therefore a bibliography,telephone directory, collection of antiquarian maps, periodical issue, or anthology of poetry could all qualify for database right even if they are not copyright. The owner of this new right will have the right to prevent unfair extraction and utilization of the database except in specific circumstances. It is unlikely, however, that the special privileges given to libraries will apply in many areas, as they will be seen as in competition with the copyright owners. This has major implications for anyone creating digitized collections as these will be eligible for copyright protection, regardless of the content, because a database as such has been created.

Publication right

This is a new and rather unusual right introduced by the EU to give some protection to anyone who first makes available to the public a work which is out of copyright and has never been made publicly available before. So any program to digitize unpublished material and make it available, including to VIPs, could cause this right to come into operation within the EU. A specific problem recently arose with this new right when an American university wanted to mount some unpublished letters of a British person on its Website. Had it done so and transmitted them into the EU, the organization within the EU which was deemed to have released them first(not the American university, which would have no rights in the EU!) would have obtained exclusive copyright in them for 25 years.

Providing access

This all sounds threatening to the very functions of libraries and similar institutions which are trying to maximize access and availability. What then can be done for the individual VIP user to enable the use of materials in libraries to continue?Licenses seem to be the obvious way forward, either in the form of an agreement with the copyright owner or, to a much more limited extent, a kind of compulsory license which gives certain groups in society the right to make copies in certain circumstances.

Licenses

Licensing copyright material for use is not new; the scheme for public performance of music dates from the 1920s. The Copyright Clearance Center (CCC) in the USA and the Copyright Licensing Agency (CLA) in the UK have been licensing various forms of copying for a number of years, and other licensing agencies are now appearing for newspapers, hymns, broadcasting, and collections of slides. It is probable that more licensing agencies will appear in the future. However, publishers and,increasingly, authors are reluctant to allow collecting societies to act for them in the electronic context because of their fears about downloading,networking, and the violation of the integrity and paternity of the documents. Added to this must be the economic aspect of copyright, namely that owners see an electronic version as having far greater potential for exploitation than a paper one and so wish to control this potential for their own benefit and also to prevent use of the work in a way that they would not approve. Fortunately the CLA announced early in 1999 that they were introducing a licensing scheme to allow Braille producers to scan documents and use the electronic version to create Braille and Moon for registered blind users.

Fairness and library privileges

Traditionally many legislations have provided exceptions in favor of VIPs (Royal National Institute for the Blind, 1997) as well as libraries, so that material can be copied to meet their needs. There is also a tradition of individuals using copyrighted works for their own private purposes ("fair dealing" or "fair use"). These provisions are by no means universal and are under serious threat from proposed EU legislation. These exceptions are seen by many experts as essential to maintain the balance between access and protection (Hugenholtz, 1997).

However, many of these exceptions are once again under threat, especially within the EU as, once again,the EU has decided to set the pace in this area by introducing a Draft Directive(Draft Directive, 1998) which deals with five major issues:

• 1.

  photographic reproduction;

• 2.

  communication to the public;

• 3.

  exceptions to both of the above;

• 4.

  distribution;

• 5.

  anti-copying and copyright management systems.

Although certain exception are proposed, they relate mostly to the paper world and not to the electronic environment. Thus, although copying in the paper situation may be allowed for library or private purposes, including some very limited exceptions for"visually impaired and hearing impaired persons", communicating to the public(almost a euphemism for "electronic provision") would not have any such exceptions, except in strict and limited circumstances. Exceptions in the electronic context would exclude library and private use because, argues the European Commission, the electronic context is quite different and can be regulated by licenses. If libraries are allowed to offer access to electronic documents they become, so it is argued, competitors for those publishing the documents in other ways ("Copyright", 1997). This is seen as the case even for on-site use, so any concept of delivering off-site either to remote users within the same organization or to those outside would be seen as anathema. As this is often a requirement for visually-impaired people who have mobility problems associated with not only physical limitations but lack of transportation facilities, this is a further blow to using technological development for the benefit of VIPs.

As it stands, the Draft Directive would allow a library to digitize old or deteriorating material which was still in copyright, but would not permit its communication to the public, as any action which results in a work being displayed on a screen would be considered communicating it to the public. Similarly, libraries would be allowed to provide access to a paper-based database but not to its equivalent in electronic form. Thus any idea of electronic transmission to fulfill a request from a remote user would be disallowed. All the work being done on the creation of audio access to catalogs and directories would be undermined. When linked to the new database right which protects any compilation of works, even if the works themselves are not eligible for copyright, the Draft Directive would make the possibilities of any electronic library system unachievable without the express consent of the copyright owners. As the very nature of a library is that its collections come from many different sources, the possibility of realizing these possibilities is virtually nil. The special role of the library in assisting in the development of economic, social, and cultural growth needs to be recognized (Skrzeslewski and Cubberley, 1997). It is important for the library community that the concept of "fair dealing" is retained by those countries that already have it and is introduced into those countries that do not!

Finally, what about technology and public access to electronic documents? The advent of the rights management era can certainly bring an end to any privileges that libraries may enjoy because it will be so easy to manage access, allow copying, collect royalties, and even allow free access in a controlled situation. But what if the system prevents all the special privileges enjoyed by libraries and individuals from being exercised? Should not the library or person be allowed to circumvent the system in this case? By no means, says the EU directive. To deliberately circumvent such a system will be an infringement, so the only hope would be to require owners to build in the privileges. Not so easy! How does the system know when a privilege is being exercised and when a deliberate infringement is being committed? Eventually, ways will be found such as the use of Smartcard technology (already well under development through project COPYSMART) but the same argument applies for those who want the law to allow systems to be bypassed. How can the true purpose for bypassing be determined?

Conclusion

Technology can find solutions to its own problems. As one lawyer said, "The answer to the machine is in the machine". It is possible to build systems which will register users with special requirements and allow them privileges which are denied to others. However, rights owners and those responsible for rights management systems will need to be persuaded or required by law to make these exceptions available. Perhaps failure to build these requirements into such systems might render them illegal in themselves. Legislation and technology have a long way to go.

Note

[1]Moon is a system of embossed type rather like Braille but the characters are more akin to standard alphabet characters.

Directive 96/9 On the Legal Protection of Databases.

Hugenholtz, B. (1997),"Rights, limitations and exceptions: striking a proper balance", in Imprimatur Consensus Forum, 30-31 October, 1997: Forum Report, Authors Licensing and Collecting Society, London, pp. 11-20.

Proposal for a European Parliament and Council Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society (1997), (COM 97, 628 final), European Commission, Brussels.

Royal National Institute for the Blind (1997), Copyright Laws and the Rights of Blind People, Royal National Institute for the Blind, Peterborough, United Kingdom.

Simcoe, E.S. (1998),"Federal court of Canada releases landmark copyright decision", Copyright World, Vol. 76, pp. 6-7.

Skrzeszewski, S. and Cubberley, M. (1997), "Community-based economic development and the library", in Watkins, J. and Connolly, P. (Eds), Role of Libraries in Economic Development, Proceedings of a Conference Held in Ljubljana, April 1997, IFLA Programme for UAP, Boston Spa, pp. 137-46.

"TESTLAB" (1997), Milleilungen der Vereinigung Osterreichischr Bibliothekarinnen & Bibliothekare, Vol. 50 Pt. 1, pp. 200-3.

"Unity and the visually impaired" (1997), Interlending & Document Supply, Vol. 25, No. 4, pp. 189-90.

Graham Cornish is Copyright Officer, British Library, West Yorkshire, UK, and Director of the International Federation of Library Associations Programme for Universal Availability of Publications (IFLA UAP). Graham.Cornish@bl.uk

Victoria Spain is"International Librarianship" editor, Library Hi Tech News, and bibliographic services librarian, Northeastern University, Boston, MA. vspain@gis.net