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The full text of 17 U.S.C. § 121 a) and b) (archive) (emphasis mine):

§121. Limitations on exclusive rights: Reproduction for blind or other people with disabilities

a. Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work or of a previously published musical work that has been fixed in the form of text or notation if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons.

(b)(1) Copies or phonorecords to which this section applies shall-

(A) not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;

(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication.

The way I understand it:

  • copies of a literary work
    meaning books, training materials, periodicals, etc. transcribed and distributed in Braille, for example

  • phonorecords of a literary work
    which would be a sound recording of a published (as in printed) literary work distributed on a medium only used by eligible people. For example, newspaper and magazine articles recorded by volunteers for an audio/radio reading service (such as the Telephone Reader Program at the Braille Institute)

Based on the above, this is how I would interpret the following scenarios:

1. NPR article accompanied by the audio version

The article itself is a literary work so I assume going ahead with that would be ok, but the audio is a sound recording and thus §121 does not apply.

2. Commercial audiobooks

Distributing this would be a no-no, because it is a sound recording (and not a copy or a phonorecord of a literary work), but converting the source literary work would be okay, I guess.

Or, distribution would be alright if the copyright owner provides explicit permission to do so. (The way the NLS does it.)

3. Work is registered as a sound recording, with an underlying literary work

Does this mean that if, for example, a training material includes text and audio, and is registered as audio recording, then §121 would not apply?

Is this scenario the same as 1. above?


Appendix

Sound recordings including underlying work

https://www.copyright.gov/register/sr-choose.html

When to Use Form SR (Sound Recordings) Use Form SR for registration of published or unpublished sound recordings, that is, for registration of the particular sounds or recorded performance.

Form SR must also be used if you wish to make one registration for both the sound recording and the underlying work (the musical composition, dramatic, or literary work). You may make a single registration only if the copyright claimant is the same for both the sound recording and the underlying work. In this case, the authorship statement in Space 2 should specify that the claim covers both works.

Form SR is also the appropriate form for registration of a multimedia kit that combines two or more kinds of authorship including a sound recording (such as a kit containing a book and an audiocassette).

https://www.copyright.gov/eco/help-type.html

Sound Recording Select Sound Recording if you are registering a sound recording. Also, select Sound Recording if you are registering both a sound recording and the underlying musical, dramatic, or literary work(s) that is embodied in that recording. Note: To register both the sound recording and the work embodied in that recording on one application, the copyright claimant must own all rights in both works.

Note: Under the copyright law, the sounds that accompany a motion picture or other audiovisual work are not considered a sound recording. Select Motion Picture/Audiovisual as the “Type of Work” to register the sounds accompanying a motion picture or an audiovisual work.

Definitions according to 17 U.S.C. § 101 (archived)

"Phonorecords" are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed.

"Sound recordings" are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.

"Literary works" are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.

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The crucial term here is the last words of 121: exclusively for use by eligible persons. The created piece must be for the exclusive use of the disabled. For example, a Braile transcription is rather easily in that exception, as it is almost illegible for the vast majority of seeing people, and only needs to come in a box that has the needed stickers of the original copyright and that one may not copy or re-convert.

Another thing that this applies to is phonorecords. These are physical items that carry audio in a way that it can be reproduced by a machine. Typically in these days those are CDs, Cassettes, or Vinyl, but in the past, Reel-to-Reel magnetic tape, shellac (there's a sound difference to Vinyl), wax cylinders and even Punchcards have been used as phonorecords. It's unclear if a flash drive could be a phonorecord, but I tend towards "no, unless it is a Read-Only-Memory".

As you observed, that exception only provides for phonorecords and copies, not the actual audio or digital files. This might be an old remnant, but it requires that a copy for the disabled has a physical manifestation that may not be copied again and only is to be given to eligible people. A file on a computer does not satisfy these rules. The Radio program for the disabled uses a different exception.

So for a textbook with audio to comply, it has to come in a physical manner and with the files on a labeled phonorecord that contains the prescribed labeling for "Do not copy" and the original copyright.

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