Date of this Version
Published by the Association of Research Libraries and University of Virginia Libraries, July 8, 2019. PDF. 56 pages. Available at https://www.arl.org/wp-content/uploads/2019/07/2019.07.15-white-paper-law-and-accessible-texts.pdf.
Institutions of higher education (IHEs—colleges, community colleges, and universities) have a mission to provide all students, including those with disabilities (a physical or mental impairment that substantially limits one or more major life activities), with opportunities for a rich, deep, and equitable learning experience, and to provide all researchers with access to a comprehensive and varied collection of information resources to support their work. Several disability rights laws create obligations for IHEs to ensure that students and researchers with disabilities have access to resources, including texts, at a level that is as close as reasonably possible to the level of access provided to those without disabilities. Enforcement actions can be brought by federal government agencies (the civil rights division of the Department of Education, for example) or by private citizens, and the result of these actions has typically been that IHEs are compelled to improve levels of access, including by incorporating new technology, creating new staff positions, and implementing new policies.
For years, disability services offices (DSOs—the office or department at an IHE tasked with supporting the needs of users with disabilities) and others involved in fulfilling the requirements of disability rights laws have viewed copyright (the body of law that governs copying, adaptation, distribution, and certain other uses of works of creative expression) as an impediment to their work. They have been uncertain about what is permitted, and have constrained their activities in support of civil rights out of fear of violating copyrights. The tension has dramatically curtailed their efficiency.
This fear is due primarily to a misunderstanding of voluntary arrangements DSOs have with some of the biggest publishers. These arrangements place strict constraints on DSOs’ use and reuse of accessible texts, based on the publishers’ view of their commercial interests, not on the law. Some publishers have also included misleading warnings on accessible texts they provide to DSOs. The Law and Accessible Texts: Reconciling Civil Rights and Copyrights 7 In reality, even in the absence of such voluntary arrangements, copyright law provides IHEs with broad, clear authority to create accessible copies of in-copyright works (i.e., to “remediate” them by converting them into a format that makes it possible for users with disabilities to acquire the same information, have the same interactions, and otherwise derive the same benefits as other users), to distribute accessible texts to qualified users, and to retain and share remediated texts in secure repositories for use in serving future qualifying requests.
The key provisions in U.S. copyright law that make this possible are Section 121, also known as the Chafee Amendment, and Section 107, the fair use doctrine. Section 121 is a specific but broad exception permitting authorized entities to make copyrighted works available to the print-disabled in accessible formats without permission from the copyright holder. Section 107 is the general right to use copyrighted works without permission when a set of flexible, equitable factors weigh in favor of the use. A landmark case, Authors Guild v. HathiTrust, has established that fair use authorizes IHEs to create and manage repositories of digital texts in support of accessibility, among other legitimate uses.
Together, these two rights enacted by Congress permit each step in a workflow that starts with a request from a student or researcher with a disability, involves remediation and delivery of an accessible version to the requestor, and culminates with deposit of the remediated version in a secure repository for appropriate future use (including future remediation) in the service of other requestors. Along the way, copyright law provides some guidance as to how exactly each step might be conducted, but leaves IHEs with discretion to design their systems in consideration of values and priorities both intrinsic and extrinsic to copyright.
In addition to copyright, IHEs working together to provide accessible texts to qualified users should consider a range of values and priorities as they decide whether and how to take advantage of their rights. These include their own missions, the privacy and autonomy of those they serve, and the plausible risks (if any) associated with increasing access to information
In 2016, Stevie Wonder addressed the United Nations, urging member states to ratify the Marrakesh Treaty. He told the assembly, “This is a truly life changing opportunity. It opens the door to the world’s knowledge to the visually impaired people.”89 Indeed, the U.S. ratification of the Marrakesh Treaty is the culmination of a series of developments in U.S. law favoring access to knowledge regardless of ability, from the Rehabilitation Act to the codification of the fair use doctrine in the 1976 Copyright Act, to the passage of the Chafee Amendment and the courts’ decisions in the HathiTrust case. Collectively, these measures create a framework that IHEs and their allies and affiliated entities can leverage to increase access and vastly improve education and research for all. They ensure that institutions with an obligation and a mission to pursue justice also have the right to do so.
Perhaps the most striking takeaway from this survey has been the extent to which copyright defers to accessibility, not the other way around. What has emerged is a hierarchy of legal interests, arrayed under the general heading of the First Amendment and its protection for expression and access to information. Contrary to what some have assumed in the past, the first priority under that heading is accessibility, which consistently trumps the exclusive rights granted by copyright when the two come into conflict. This priority is built into the copyright law itself, through both its general fair use right and its specific provisions favoring accessibility. The effort involved in ending the book famine for thousands of students and researchers will be substantial, and there will surely be challenges along the way, but copyright law should not be one of them.