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AHEAD's Perspective on the Issues of Textbook
Access
December 2006
The purpose of this paper is to offer assistance
to colleges and universities required to scan textual instructional
materials
into digital formats for students with disabilities in order
to provide for effective access to curriculum materials and to
respond to assertions contained in a position paper disseminated
in 2004 by the American Association of Publishers 1.
Background
The Association on Higher Education And Disability
(AHEAD) is the premier professional association committed to
full access
and participation of persons with disabilities in postsecondary
education. AHEAD’s membership includes 2,200+ members,
representing 1,530+ postsecondary institutions. The organization
dynamically addresses current and emerging issues with respect
to disability, education, and barriers to accessibility.
Lack of effective access to print-based materials has long been
one of the greatest barriers for postsecondary students with
print-related disabilities. Braille, audiotapes, and use of human
readers have historically been the means for access. However,
technological advances, especially in the last decade, have greatly
improved and increased the options for effective access to print
materials for these students.
The publishing community is not directly bound by the civil
rights laws, Section 504 of the Rehabilitation Act of 1973 and
Americans with Disabilities Act (ADA) of 1990, as they relate
to education access. However, postsecondary institutions are.
Colleges and universities are legally obligated to provide effective
access to all course materials to students with disabilities.
In the case of print or text-based materials, meeting that obligation
frequently requires providing materials in an alternate format.
Today, alternatives usually consist of a digital copy of the
material, either for direct use by the student or to create the
appropriate end-user format (e.g., Braille, large print, audio).
AHEAD understands that current technology,
including the Internet, has increased the potential risk of
infringement for publishers
and other copyright holders by all manner of end users. However,
that risk must weighed against the increased access made possible
by that same technology. We believe that the rights of students
with disabilities must be considered paramount to the contractual
interests of the copyright holder. Until such time as textbooks
and other materials are commercially available in all formats
necessary to provide access for all students, there will continue
to be an inherent tension between the institution’s obligation
to provide access and the rights of the copyright holder. As
technology continues to evolve, increasing options will be available
to ensure both access and security. Meanwhile both sets of rights
can be protected with reasonable processes and protections as
outlined in the following.
Current National Initiatives: AHEAD’s E-Text
Solutions Group and the Association of American Publishers (AAP)
Alternative
Formats Solutions Initiative
AHEAD’s E-Text Solutions Group focuses
on policies, procedures, best practices, and training in providing
the accommodation of
digital text to those students with disabilities that limit their
ability to access standard print materials
The AAP’s Alternative Formats Solutions Initiative is
currently working collaboratively with AHEAD’s E-Text Solutions
Group and other stakeholder groups to develop practical, collaborative
solutions to current problems in the delivery of accessible materials
and to identify a “coordinated national accessible materials
solutions framework.”
AHEAD is committed to working with the AAP and other groups
to find solutions to the issues of providing students with print
disabilities access to books and other media in a manner that
is timely and accurate and, as nearly as possible, allows students
to obtain the information needed for their education in a manner
equivalent to that of non-disabled peers.
The Current Situation: The Need to Scan Instructional Materials
As noted above, postsecondary institutions are obligated to
provide access to their programs and services for all students.
[A] public college is required "to take
appropriate steps to ensure that communications with students
are as effective
as communications with others ...
The Office for Civil Rights (OCR) has repeatedly
interpreted the term "communication" in this context
to mean the transfer of information, including (but not limited
to) the verbal
presentation of a lecturer, the printed text of a book, and
the resources of the Internet. In construing the conditions
under
which communication is "as effective as" that provided
to non-disabled persons, on several occasions OCR has regarded
the three basic components of effectiveness as timeliness of
delivery, accuracy of the translation, and provision in a manner
and medium appropriate to the significance of the message and
the abilities of the individual with the disability.
With regard to the "significance of the
message" of
a textbook, OCR notes that a course-assigned textbook constitutes
a core component of the postsecondary academic curriculum.
That is, a course-assigned textbook is customarily the primary
reference
tool upon which the student is expected to rely. Moreover,
the content structure of the course is often closely correlated
to
the textbook, such that it is difficult to actively learn and
participate successfully in the classroom if the student is
unfamiliar with the assigned textbook material. Finally, through
examinations
the student is ordinarily held accountable for knowing the
information in the assigned portions of the textbook2.
Postsecondary institutions have developed
in-house conversion capabilities because, in many cases,
if not most, no reasonable
alternative exists. An institution that continues to provide “access” only
through provision of linear audiotape, readers, or scanning
stations for student use is unlikely to succeed against an
OCR complaint.
Not all titles are available from the recognized authorized
entities, and not all publishers are currently able and/or
willing to provide
many of the files necessary for student use, even in states
with E-text Textbook laws.
Application of Copyright Laws to Scanning and Other Conversion
of Print Materials
In April 2004, the AAP published a memorandum
identifying the publishing community’s concerns regarding
application of the Chafee Amendment to Chapter 219 of the New
York State Laws
of 2003 as amended in 2004. The main point of the memo is that
conversion by postsecondary institutions of print textbooks to
a digital format for use by a student with a disability cannot
be considered to fall within the copyright exception of the Chafee
Amendment. The memo also describes concerns related to application
of the Fair Use Doctrine to such conversions and the population
being served by colleges and universities.
While AHEAD respects the opinion of AAP and
shares the organization’s
concern for preservation of author and publisher contractual
and financial rights, we note that there is currently no definitive
case law on this issue. We also note that there is a long list
of OCR letters clearly identifying the institutions’ obligation
to provide effective access to course materials, including textbooks.
AHEAD offers an alternative position, arguing that when a postsecondary
institution scans a text solely for the purpose of providing
access to a person with a verified print disability it is covered
by the fair use and Chaffee Amendment provisions of the U.S.
copyright law.3
Application of the Doctrine of Fair Use
While the AAP’s memo focused primarily on
the Chafee Amendment, AHEAD believes that this focus may confuse
more than clarify
the issues. Unlike the traditionally recognized authorized entities
under Chafee (see below) that, in some cases, convert material
to meet an anticipated market, colleges and universities convert
materials to meet a currently identified need for an identified
student. As such, the institution’s actions may be considered
to be those of an agent of the student.
AHEAD takes the position that access-necessary
conversion or reproduction by a person with a print impairment,
or by a college
or university on such a person’s behalf, must be considered
a fair use. In fact, the legislative history of the 1976 Copyright
Act includes a statement that making copies of a protected work
in a form for use by blind persons is a fair use. 4 The
AAP in its memo notes that “such reproduction and distribution
probably would qualify in most instances for a ‘fair use’ defense
against a claim of infringement by the copyright owner . . . ”
Section 107 of the Copyright Act codifies fair
use.
“Notwithstanding the provisions of
sections 106 and 106A, the fair use of a copyrighted work,
including such use by reproduction
in copies or phonorecords or by any other means specified by
that section, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom
use), scholarship,
or research, is not an infringement of copyright. In determining
whether the use made of a work in any particular case is a
fair use the factors to be considered shall include
(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or
value of the copyrighted work.”
Whether the use of a copyrighted work constitutes fair use is
determined on a case-by-case basis by applying the facts of each
case to the four factors above.5 The four statutory factors are
not to be treated in isolation; instead, their results should
be weighed together in light of the purposes of copyright.6 Courts
have held that the fourth factor, market harm, is the most important
factor to be considered.7
Purpose and character of use. The purpose
and character of the use in question is purely educational
and nonprofit. These
digital reproductions are undertaken solely to provide students
with qualifying disabilities access to instructional course materials.
In undertaking these reproductions, colleges and universities
do not collect a profit; rather, they are performing their legal
duty to provide appropriate accommodations for students with
disabilities. The materials reproduced are educational texts
used in conjunction with college coursework and are converted
into digital formats for students’ individual study. Without
such reproductions, students would be unable to access the course
materials and could not benefit from the course materials they
had purchased. The use is solely educational in nature and is
restricted to students with disabilities that affect their ability
to utilize standard print. This factor weighs in favor of fair
use.
Nature of the work. The second factor looks at the nature of
the copyrighted work and calls for the recognition that some
works are closer to the core of intended copyright protection
than others. Here the works being reproduced are highly protected
literary works. However, even if this factor does not favor fair
use, the totality of the factors does, since these factors are
not to be looked at in isolation.
Amount and substantiality of the portion used. The third factor
looks at the amount and substantiality of the portion used in
relation to the copyrighted work as a whole. Although the entire
work is being copied, that is the only amount of the original
work that is appropriate for the favored educational purpose;
nothing less could be taken and still meet the educational purpose.
Effect on potential market for or value of the copyrighted
work. The fourth
fair use factor, the most important in this context, addresses the potential
market for or value of the copyrighted work and the extent of market harm caused
by the reproduction. No market harm is created by allowing colleges and universities
to reproduce works as digital text. As stated earlier, AHEAD advocates that
the student buy the course materials at the same cost as that of other students
(sometimes, in fact, necessitating purchase of an unusable format in order
to obtain a usable one). Therefore, the copyright holder and publisher still
receive any revenue generated from the purchase of the material. The market
for hard-copy materials is not supplanted. Colleges and universities are not
buying one copy of a book and reproducing it for all of their students; there
is a one-to-one ratio of books to reproduction. Instead, this is a controlled
reproduction for personal educational use by a particular qualified student
with a particular disability. There is no similar product marketed by the copyright
holder for the student to buy and use. Again, and most importantly, there is
no market harm because the student has purchased the original text and is simply
creating or receiving a reproduction in digital form in order to access the
paid-for content.
The publishing companies and copyright holders
should not control how a bona fide purchaser uses the material
so long as the work
is not reproduced for use by multiple people or for commercial
exploitation. Reproducing hard-copy text into digital form for
the educational use of students with disabilities does not economically
harm the copyright holder. “Copyright was intended to increase
and not impede the harvest of knowledge.”8 Authors will
not be discouraged from creating literary works. Reproduction
of instructional materials for this limited, educational use
must be considered fair use.
The Chafee Amendment and Its Application to Postsecondary Institutions
In 1996, the U.S. Copyright Law (Section 121) was amended to
allow authorized entities to reproduce or distribute copies of
previously published nondramatic literary works if the copies
were reproduced or distributed in specialized formats exclusively
for use by blind or other persons with disabilities. The AAP
identifies the purpose of the Chafee Amendment as
[elimination of] the need to compensate or obtain permission
from a copyright owner, and thus save resources and provide greater
efficiency, in the process of reproducing and distributing certain
copyrighted works in formats that are accessible to persons who
are blind or otherwise have difficulties making conventional
use of print materials.
Prior to the amendment, long delays often prevented blind and
other students with disabilities from receiving accessible formats
of the print material available to their peers and required for
success in their educational program. The Chafee Amendment was
passed to facilitate the creation of accessible formats of print
materials for the benefit of these students.
Defining an authorized entity:
The Chafee Amendment defines an “authorized entity” as
a nonprofit organization or 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 (emphasis added).9 Read
broadly, colleges’ and universities’ disability services
departments should be included within this definition. Colleges
and universities are nonprofit organizations whose primary mission
is to educate students, including students with disabilities.
That mission can only be accomplished when full access is accorded
all enrolled students.
The AAP argues that Congress did not intend
the typical educational institution, solely by virtue of its
legal responsibility to
accommodate students with disabilities, to qualify as an “authorized
entity.” To defend this proposition, the AAP focuses on
the “primary mission” section of the statutory text,
arguing that the Chafee Amendment was created to “expand
the capabilities” of programs like the National Library
Service for the Blind (NLS) and Recording for the Blind and Dyslexic
(RFB&D), and not to specifically meet the educational needs
of students with disabilities.
While the amendment did expand such programs,
that benefit is collateral. The Congressional Record is clear
that the goal of
the amendment was to end the unintended censorship of blind students’ access
to current information, to prevent the delays that created a
barrier to blind students being informed and literate. The ultimate
beneficiary of this amendment is not third-party organizations,
but persons with disabilities. The focus should remain
where Congress intended 10– on access to print-based
materials and not on the “primary mission” of an
organization that facilitates such access.
Colleges and universities, and especially
their disability services offices, should be recognized as “authorized entities” as
defined under the Chafee Amendment. Failure to do so prevents
institutions from meeting their legal obligation to provide access
to their programs and services. A decade ago, only the most visionary
could have imagined the opportunities for ready and effective
access provided by today’s technology. At that time students
were generally limited to depending on human readers, obtaining
Braille or linear audiotape materials from NLS, RFB&D, and
other traditionally recognized authorized entities, or personally
scanning print materials page-by-page to create non-navigable
digital text. Today’s technology, fueled by digital files,
provides far more effective, efficient, independent access to
text resources. It would be the ultimate irony to conclude that
students can have access to the technology that can provide access
but not to the electronic files for use with the technology.
Colleges and universities can and should be held
to reasonable standards designed to protect the rights of all
the parties involved.
Print impairments are certified. Students should sign agreements
not to share or reproduce converted material. No economic harm
should befall the copyright holder; AHEAD believes colleges and
universities must require that students purchase the materials
being reproduced.
The AAP argues that institutions should receive
permission from copyright holders before any scan or other conversion
occurs.
Unfortunately, recent surveys indicate that requests to publishers
for permission to scan books are frequently denied or ignored.
If permission must be obtained and the publishing companies
ignore requests or refuse permission to scan books, institutions
are in a Catch-22 situation—they either risk a copyright
infringement suit or risk violating students’ federal
right to auxiliary aids and services under the ADA and Section
504.
Again, AHEAD believes the civil rights of
students with disabilities must be considered superior to publishers’ contractual
rights. In the end, it is the students–the intended beneficiaries
of the amendment 11– who are damaged, not the publishers.
It would be manifestly unjust not to allow colleges and universities
to provide these accommodations in-house.
Covered disabilities:
AHEAD supports efforts to develop a Universal Design approach
to education wherein a variety of formats would be available
to all consumers depending on their preference and not dependent
on disability status . However, the issue here (and that addressed
in all state e-text laws) is not universal access, but access
for students with disabilities that interfere with their ability
to use standard print. If a market exists or develops for digital
options, we trust publishers will recognize such and market accessible
materials directly to consumers. At the point when any material
is commercially available in an appropriate accessible format,
therefore, this organization will recommend that no further institutional
conversions be made.
The AAP appears to argue that the exemption
in the copyright law only applies to blind and physically disabled
students.
However, that argument does not address the fact that there are
students with other print disabilities who will be unable to
access educational materials if the Chafee Amendment and other
relevant statutes are read so narrowly. The majority of students
needing alternate format print materials are identified with
dyslexia and other learning disabilities. Additionally, as the
biological and neurobiological bases of some learning disabilities
that impair students’ access to print are better understood,
a compelling argument is made for students with learning disabilities
to be considered “physically disabled.” Similarly,
no rational argument can be made for excluding students with
traumatic brain injuries (or other organic brain dysfunctions),
whose symptoms may be similar to those of students with learning
disabilities. In fact, both RFBD and Bookshare currently serve
these populations.
In 2004, the AAP and many large publishing houses
agreed to the inclusion of the following language in the New
York State
Implementation Guidelines for Chapter 219 memo12:
A print disability: The disability services coordinator or 504/ADA
compliance officer should use professional judgment to determine
whether a student has a disability that prevents him/her from
using standard instructional materials. In general, a print disability
results in the inability to effectively utilize print material
and may include blindness, some specific learning disabilities,
or the inability to hold a book.
Colleges and universities are legally obligated
to provide appropriate accommodations, such as e-text, to all
qualified students with
disabilities, not just blind or physically disabled students.
Applying the AAP’s limited statutory construction would
leave these students without the ability to access required educational
materials. Congress could not have intended this result.
Covered formats:
The AAP contends in its memo that “digital text” within
the Chafee Amendment refers only to the process by which scanned
text may be used by blind persons with specialized text-to-speech
translation software, rather than to digital text that might
be freely transmitted via the Internet or burned into CDs. Thus,
it claims that “digital talking books” and other
current and developing formats that not only serve accessibility
needs but may also prove attractive for use by persons without
disabilities were not contemplated within the scheme of the Chafee
Amendment. While this may be true, the AAP’s argument is
unsubstantiated by current laws. As technology evolves and becomes
more sophisticated, so do our laws. The VCR was not created nor
thought of during the drafting of the copyright law, yet the
Supreme Court held that consumers may video record programs.
Students with disabilities should not be relegated to using
outdated technology simply because the latest technology was
not contemplated at the time the Chafee Amendment was drafted.
Students with disabilities must have access to the latest technology
available to improve their access to text materials and permit
them to compete equally on the academic playing field.
Conclusion
AHEAD supports the position that reproduction of course texts
into digital forms is a fair use of copyrighted materials under
Section 107 of the United States Copyright Act. Whether or not
postsecondary institutions are considered authorized entities
under the Chafee Amendment, production of accessible print materials
for students with print disabilities cannot be considered copyright
infringement.
Access to digital text is a necessary and appropriate accommodation
for students with disabilities that will become more necessary
and appropriate as technology improves and more students with
disabilities attend postsecondary educational institutions. Until
publishers and copyright holders are willing and able to provide
appropriate digital text, colleges and universities must have
the legal ability to do so.
AHEAD applauds the many initiatives, including those of the
publishers, taken to date to improve access to print materials
for students with disabilities and will continue to serve as
an active partner in finding solutions that strike an appropriate
balance between accessibility for students with disabilities
and copyright protections for authors and publishers.
While the immediate issue and AHEAD’s
primary mission focus on access to print materials for students
enrolled in postsecondary
education, we urge all stakeholder groups to seek solutions that
provide the opportunity for students with disabilities to independently
obtain appropriate accessible materials and that include access
for all persons with print disabilities without the limitation
of student enrollment.
-Association on Higher Education And Disability,
December 2006
Endnotes:
1 AAP Position Paper. Retrieved December 6,
2006, from http://www.ahead.org/etext/Copyright%20Issues.doc
2 City
College of San Francisco, OCR Case Docket No. 09-97-2145 (January
9, 1998)
3 Copyright laws of the United States of America.
Retrieved December 6, 2006, from http://www.copyright.gov/title17/92chap1.html
4 See Senator Chafee’s introduction to
the amendment in the Congressional Record. Retrieved December
6, 2006,
from http://www.nfbcal.org/nfb-rd/1102.html
5 Courts
have held that the ultimate beneficiary cannot be overlooked. Bob
Jones University v. Johnson, 396
F.Supp 597 (D.S.C. 1974), Bartlett v. N.Y.S. Board
of Law Examiners, 156 F.3d 321 (2d Cir. 1998). See also Bowers
v. National Collegiate Athletic Association, 118 F. Supp. 2d 494 (D.N.J. 2000),
130 F.Supp. 2d 610 (D.N.J.
2001).
6 See Making copyrighted works
available to person with visual impairments. Retrieved December 6, 2006,
from http://www.unc.edu/~unclng/copy-corner55.htm
7 See Campbell
v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
8 See id.
9 Copyright Law of the United States
and Related Laws Contained in Title 17 of the United States
Code Circular 92. Retrieved
December 6, 2006,
from http://www.bookshare.org/web/CopyrightLaw.html
10 See Harper & Row
Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 567
(1985).
11 See id.
12 See Vocational
and Educational Services for Individuals with Disabilities.
Retrieved December 6,
2006, from http://www.vesid.nysed.gov/specialed/publications/persprep/chap219.htm
AHEAD gratefully acknowledges the assistance
of attorney Jo Anne
Simon, and law student Jenna Pantel in the creation of this
document.
Download this document in
Rich Text Format here.
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