SCOOP: What Copyright Law Says About Serving Students with Disabilities

As libraries prepare for the new school year, understanding how to make materials accessible to students with disabilities is a critical part of planning. Disabilities may be either permanent or temporary and include blindness, visual impairment, learning disabilities, cognitive or intellectual disabilities, and any other physical disabilities that impede the use of both print and non-print materials. Achieving accessibility requires both technological and legal considerations to ensure equitable access to learning materials. In this month’s SCOOP, we will briefly look at the legal considerations, namely copyright law, and provide guidance on how to apply the law and best practices in making content accessible.

US and International Copyright Law

Copyright law must be reviewed because there is potential for interference with creators’ rights when modifying content for accessibility. In the US, both statutory and case law govern how libraries can make copyrighted works accessible for persons with disabilities. Within the US Copyright Act, the two applicable statutes are the fair use statute (17 U.S.C. § 107) and what is known as the Chaffee Amendment (17 U.S.C. § 121).

Briefly, the four factors of fair use should be considered when making copyrighted content accessible for students with disabilities. In the case of Authors Guild v. HathiTrust, the Second Circuit Appellate Court held that the fair use statute allows libraries to provide full digital access to copyrighted works to print-disabled patrons. For further discussion of best practices for applying fair use in the context of making copyrighted content accessible, we highly recommend reading Principle Five of the Code of Best Practices in Fair Use for Academic and Research Libraries.

The Chaffee Amendment amended the US Copyright Act in 1996 to carve out an exception to a copyright holder’s exclusive rights to, at that time, allow authorized entities to reproduce and distributed copyrighted works in “specialized formats” exclusively for use by “blind or other persons with disabilities.” “Authorized entities” is defined as any nonprofit or governmental agency that has a primary mission of providing training, education, or information access needs of blind or other persons with disabilities. Colleges and universities and their libraries have since been held to be such authorized entities.

Before the adoption of the Marrakesh Treaty, the Chaffee Amendment imposed some limitations on the formats and content that were eligible to be made accessible. With the 2019 ratification of the Treaty by the US, the language and effect of the Chaffee Amendment were changed. Now, formats need only be accessible, not specialized, and they need be for exclusive use by any eligible person. Eligible persons include not only persons who are blind but who also may have a visual impairment or perceptual or reading disability that cannot be improved or who is otherwise unable through physical disability to hold or manipulate a book or to focus or move the eyes as is done in reading. This broadening of the language now permits any format that permits eligible persons to have access as “feasibly and comfortably” as a person without a disability.

Applying the Law

Application of the relevant law to traditional physical print materials is fairly straightforward. Copyrighted print text works may be reproduced and distributed in braille or in other accessible or adaptable formats. For electronic materials, accessibility may be preserved through licensing. When reviewing e-resource licenses, it’s important to ensure that there is no waiver of fair use and no additional notice or permission required for uses falling within fair use. Favorable license terms also include explicit protection for activities related to accessibility and specific requirements on vendors to provide accessible versions of their products or features that enhance accessibility. There are several model licenses that provide suggested language for accessibility, including the ARL Model License, which has been adopted by the Big Ten Academic Alliance and others, and the Library Accessibility Alliance Model License.

For non-print works such as videos, audio recordings, podcasts, and video games, accessibility takes the forms of captions, audio descriptions, and transcripts. The current laws do not specifically cover accessibility of these formats; however, fair use is a proper vehicle for legally justifying making these formats accessible. Additionally, libraries should, where applicable, see if the provider or vendor supports accessibility requests or has accessible versions available.

Additional Reading

• A worthwhile read is Colorado Law Professor Blake Reid’s recent law review piece on copyright law and disability. https://www.californialawreview.org/print/copyright-and-disability/
• IFLA has provided an excellent practical guide for libraries implementing the provisions of the Marrakesh Treaty. https://www.ifla.org/files/assets/hq/topics/exceptions-limitations/getting_started_faq_marrakesh_treaty_a_practical_guide_for_librarians_2018_en.pdf
• Some of the content of this SCOOP column was informed by the Scholarly Communication Notebook project, which features a section on copyright and accessibility. https://www.oercommons.org/courses/accessibility-disability-copyright?__hub_id=88

The SCOOP, Scholarly COmmunication and Open Publishing, is a monthly column published to inform Atla members of recent developments, new resources, or interesting stories from the realm of scholarly communication and open access publishing.