Copyright and Disability

Abstract

A vast array of copyrighted works—books, video programming, software, podcasts, video games, and more—remain inaccessible to people with disabilities. International efforts to adopt limitations and exceptions to copyright law that permit third parties to create and distribute accessible versions of books for people with print disabilities have drawn some attention to the role that copyright law plays in inhibiting the accessibility of copyrighted works. However, copyright scholars have not meaningfully engaged with the role that copyright law plays in the broader tangle of disability rights.

This Article fills a gap in the copyright literature by observing that recent progress toward copyright limitations and exceptions elides an ableist tradition in the development of U.S. copyright policy: centering the interests of copyright holders, rather than those of readers, viewers, listeners, users, and authors with disabilities. The Article illuminates this ableist tradition through two contrasting case studies of U.S. policy toward making copyrighted works accessible. First, the Article examines the pre-Civil War institutional approach to creating and distributing accessible books, which became mired in copyright issues at the Library of Congress in the lead-up to the 1976 Copyright Act and forms the basis of today’s paradigm of copyright law’s application to accessibility. Second, the Article traces the divergent approach to captioned films and television, which mostly avoided copyright issues after responsibility shifted away from the Library of Congress and evolved into a radically divergent regulatory approach administered by the Federal Communications Commission.

These case studies demonstrate that copyright’s ableist tradition subordinates the actual interests of people with disabilities to access copyrighted works to the hypothetical interests of copyright holders who may withhold access without reason. This subordination has led to a harmful, invasive, and unnecessary intrusion of copyright’s permission structure and culture into disability policy. The Article argues that copyright limitations and exceptions should not be understood as an expansion of access to people with disabilities but rather as an important-but-modest reversal of copyright’s largely unnecessary presence in disability policy. That reversal leaves unresolved significant questions about how to actually make copyrighted works accessible that must ultimately be answered by disability law, not copyright law.