RAQs: Recently Asked Questions

Topic: Accessibility options for school ebooks - 01/05/2021
Students in a school are reading a simultaneous use eBook. The students with IEPs[1] have access t...
Posted: Tuesday, January 4, 2022 Permalink

MEMBER QUESTION

Students in a school are reading a simultaneous use eBook. The students with IEPs[1] have access to a screen reader but this feature is very robotic and doesn't meet their needs. The school librarian and the School Library System searched for an audio version of this book but could not find one for purchase. Several students need a high-quality audio version of the book that is not robotic because of their learning needs. Would the school library be covered under fair use if they recorded a reading of the book for the students and posted it in Google Classroom for the students? This would be in a closed platform and not open to everybody on the internet.



[1] IEP stands for "Individual Education Program, “which is a tool used in elementary and secondary schools to effect ADA accommodations for students.  For more info on that, see https://www2.ed.gov/about/offices/list/ocr/504faq.html.

 

WNYLRC ATTORNEY'S RESPONSE

The school may be covered by Fair Use but for this scenario, it doesn't need to be in order to make the recording proposed by the member.

Why?

Because Section 121 of the Copyright Act allows "authorized entities" (like schools serving those with IEP's)[1] the right to make a copy in an "accessible format" (like an audio file) for "eligible persons" (like a student with an IEP), without it being an infringement.

Of course, there's always a catch.  In addition to precautions like the one described by the member (limiting access to only those who need it), the exception under Section 121 has other requirements, such as:

  • The accessible copy has to have a copyright notice.
  • The accessible copy has to have a note stating no further copies are authorized.
  • It doesn't apply to computer programs.[2]

I am putting a copy of Section 121, which was most recently amended in 2018, below this answer, so members can review its requirements and consider how it might apply in their institution.

Now, I will say that if there wasn't a Section 121, there is a strong chance the format conversion described by the member would qualify as a Fair Use.  In fact, the 2nd Circuit Court of Appeal, which is the first level of appeal for copyright cases in New York State, has found Section 121's to bolster educational institutions' claims of Fair Use.[3]

But between a rock-solid exemption like Section 121, and a shifting, 4-part formulaic one like Section 107 ("Fair Use"), I say: go for the rock-solid exemption. 

The law takes assured access for those with disabilities seriously, and that regard is important to strengthen through robust and repeated use.

Thanks for a valuable and carefully thought-out question.

 

Here is the full text of section 121:

(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.

(2)The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.

 

(c)

Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if—

(1) the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency;

(2) the publisher had the right to publish such print instructional materials in print formats; and

(3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in accessible formats.

 

(d)For purposes of this section, the term—

(1) “accessible format” means an alternative manner or form that gives an eligible person access to the work when the copy or phonorecord in the accessible format is used exclusively by the eligible person to permit him or her to have access as feasibly and comfortably as a person without such disability as described in paragraph (3);

(2) “authorized entity” means a nonprofit organization or a 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;

(3)“eligible person” means an individual who, regardless of any other disability—

(A) is blind;

(B) has a visual impairment or perceptual or reading disability that cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or

(C) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading; and

(4) “print instructional materials” has the meaning given under section 674(e)(3)(C) of the Individuals with Disabilities Education Act.



[1] The literal definition of "authorized entity" is "a nonprofit organization or a 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."  The only case law construing this language interprets it to include educational institutions with obligations to provide ADA access.  For more on that, see footnote #4.

[2] An eBook is not a computer program.

[3] In the 2014 Hathi Trust case (Authors Guild, Inc. v Hathi Trust, 755 F3d 87 [2d Cir 2014])), the court opined that an academic library could qualify for 121's exemption because of its obligation to provide access under the ADA.  This was bootstrapped into an allowance for Fair Use, too.  It's not the smoothest finding, but it's there, and it’s the only line of cases citing 121 as of December 19, 2021.

Tags: Accessibility, Accomodations, Copyright, Digital Access, Fair Use

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