Accessibility Legislation

Accessibility Legislation

9:00 am  May 18, 2004

Allan Adler – Related Copyright Issues under the Chafee amendment (AAP)

Stephen Driesler – K12 legislation (AAP)

Elizabeth Delfs – Higher Education Learning (Pearson)

Christopher Goff – Legal Implications for Trade publishers (Harper Collins)

Adler

VP for Legal and Government Affaris

AAP

Accessibility and Copyright: The Chafee Amendment

Link between Accessibility and Copyright

• Disabilities can prevent some individuals from “accessing” or using copyrighted works in normal intended ways.
• Such individuals need copies of these works to do their job/education
• Implicates copyright because  you are copying
•  

Obligations to facilitate accessibility

• ADA, IDEA, Rehabilitation Act
• Overlapping laws do not directly impose specific obligations on publishers but can indirectly through dealings with state/local programs that receive federal financial assistance
• For purposes of this discussion, you have to be aware that these laws impose obligations on state and local government programs – not the publishers directly.  But, typically state and local governments then pass these obligations on to the publishers.

What is Chafee amendment?

• 1996 – Amended Copyright law for disabilities affecting use of printed works
• Exempts certain “authorized entities” from the rights of copyright owners with respect to reproducing and distributing copies of “previously – published non-dramatic works” in “specialized formats exclusively for use by blind or other persons with disabilities.”
• Because this was inserted into a budget bill, the legislative history of the intent of this language is not available
•  

Purpose of  Chafee Amendment

• Eliminate need to compensate or obtain permission from any copyright owners for the reproduction and distribution of copyrighted works in specialized formats.
• Save money and improve efficiency in the process of making copies of works available to individuals who need them in specialized formats.
• These provisions would eliminate need for those converting format for disabled to have to seek permissions.

Limitations of Chafee Amendment

• While generally intended to expand capabilities of programs like the National Library Service for the Blind and Physically handicapped the American Printing House for the Blind, and Recording for the Blind – the exemption is very limited
• Although publishers often focus on its application to the curriculum material needs of students with disabilities,
• Emphasizes Chafee wasn’t intended by its language to be extended to the needs of students
• Limitations included limits to types of works, rights, copies and who the eligible beneficiaries.

Types of Works

• Previously published non-dramatic works (no unpublished works)
• Does not cover audio-visual, musical, dramatic
• Does not cover pictorial or graphic works or sound recordings
• Excludes “standardized, secure or norm-referenced tests and related testing material” and “computer programs”

Types of rights

• Limited to reproduction and distribution
• Does not cover public performance, public display or preparation of derivative works

Who is covered as authorized entity

• Non-profit or governmental agency with a primary mission to provide specialized services relating to training, education, adaptive reading or information access needs of blind or other persons with disabilities.
• Most education institutions do not qualify as “authorized entities “
• Congress would have clearly worded the amendment differently if it had intended all educational institutions to be authorized

Specialized Formats

• Limited to those “exclusively for use by blind or other persons with disabilities” (defined by reference to NLS eligibility for persons who are unable to read normal printed materials due to blindness, visual disability or physical limitation.)
  
  
• Explicitly limited to braille, audio or digital text (i.e. not audio playable on ordinary consumer devises or “digital text” that is ordinarily transmitted over online networks”)  Says this was not intended to be so broad as the plain English dictates.  Some legislative intent says the audio was intended to support the same format typically used for the blind (different speed tapes). [So, this is technology specific legislation?]
• Does not include “large print” format (competitive market exists, fueld by needs of senior citizens)

[Clearly, they are limiting the exceptions to maximize revenue markets.]

[Also, is taking general market analysis assumptions and focusing on a particular vertical market]

Applications

·         Facilitating work of NLS, APHB, RFB&D

·         Meeting needs of students with print disabilities on both K12 and higerh education levels

·         Innovative Internet-based subscription services like bookshare.org

[Bookshare is an authorized entity as its primary mission is to serve the blind and disabled population]

Future of Chafee

• Expected to have continuing relevance
• For students
• Inadequate foundation to serve much larger population with learning disabilities and consequent demand for universal design of instructional materials instead of current retrofitting approach to needed accommodations
• Increased reliance on digital media capabilities will also mean moving beyond “accessibility” issues to “pedagogy” issues for which Chafee Amendment is unsuited (e.g. derivative works)

Now that we are realizing full capabilities of digital technologies – increasing demand for universal design of materials so that such materials have built into them the capabilities to produce the alternative formats.  It is ambitious to design a text that can be that flexible.  You are also moving beyond merely helping accessibility – but into pedagogy.  To improve instructional materials – you are no longer just reproducing but adapting it which implicates the derivative works right of the author.

When you say we need to go beyond chafee do you anticipate future legislation?

Depends on whether we deal with mandates or accommodations.  Chafee itself would have to be amended.  State legislatures have no role as Copyright is exclusively federal. 

Publishers will be tasked, if so, they will need to get rights back to them exempted under Chafee, so they gain compensation.

[email him for copy]

Steve Dreisler

We have had privilege to having dealt with accessibility issues much longer than most higher ed have. 

Walking through the history

First responsibility put on institutions receiving federal funds

Section 504 of disability act of 1973. 

Higher Learning and K12 – private companies were not included

Americans with Disabilities Act

            Did away with receipt of fed funds but imposed requirements on public entities

Individuals with Disabilities Education Act (1977) and being re-authorized – dealt primarily with K12

IDEA focused on students 6-21 and requires must assess, participate, and progress in the general program alongside their non-disabled peers (mainstreaming)

Prior to IDEA typical to have special school or class with disabled focus.

Add on another layer – No Child Left Behind of 2001

• The goal is good, public education for every child
• Certain accountability measures – testing etc
• Disaggregated into subgroups with students with disabilities being one of those subgroups
• So, your other 8 subgroups could pass, but the disabilities group fails – that causes your school to fail
• Greatly increases public accountability

In addition to federal statutes, thirty plus state statutes requiring something of the publisher in order to help the school systems meet these requirements.  Often nothing more than requiring publisher to give permission to agency to reproduce materials in accessible format.  Then took form of publishers to submit electronic format.

The vast majority of these state statutes focus on blind and low vision students. Most recently, these laws go beyond these disabled students but to include all students.

Ky statute requires accommodations to “students with individual education program, or section 504 – including visually impaired and learning disabilities or other disabilities affecting reading.”

One of the primary reasons for the Chafee amendment was to make this less burdensome on school systems and enabling agencies to get the permissions necessary to produce the alternative formats.

What is causing so much confusion is that you are dealing with 3 different definitions of what constitutes a disability

1. Print Disabled definition
1. Slightly more than 100,000 (less than 1 percent of total student population in America) – clear that no for-profit market can satisfy the needs of this small group
2. So, publishers said we’d “give away” the rights.
3. So, the Chafee definition is the center ring of the target
4. Next ring is IDEA – over 6 million students have IDEA plans

                                                              i.      K12 – 13% of total student population

                                                            ii.      There is a significant market impact if you are giving away rights to 13% of your market

5. The next broader ring is 504 definition

                                                              i.      Never seen exact numbers because 504 is a civil right.  Determined on case by case basis, often by courts, on who does and does not qualify

                                                            ii.      But, I have seen numbers that 504 population could be another 5% more beyond IDEA.

                                                          iii.      So, now 18-20 percent of k12 market is covered

2. Limited English Proficiency or ESL
1. Advocating that their students are disabled

                                                              i.      One of the nine subgroups in NCLB is ESL

                                                            ii.      School systems are held accountable same as for disabled

                                                          iii.      Kentucky definition (disability affecting reading) may apply

                                                          iv.      Now population approaches 50% of market

3. Got to envision that growing population meets some definition of disabled

Four years ago AAP and advocacy group set down to work on federal system to make life easier on all of us.  This hodge-podge of file formats,

Instructional Materials Accessibility Act

1. Single national file format
1. Structured format more so than what is in use today
2. Conversion to accessible formats less labor intensive
3. All states to use this format
2. National Depository
1. Somewhere school system could go…
2. Goal is to get materials to students as quickly as non-disabled students
3. Consistent with current copyright laws
1. Key elements of IMA have found their way into IDEA re-authorization legislation
2. House version doesn’t have depository
3. Senate has depository (otherwise they are the same)

Where is all this leading?

Two aspects –

1.      Chafee is now perceived as barrier to keeping materials out of hands of broader definition of disabled students

2.      Chafee can’t long endure

3.      What do we replace Chafee with?

a.       Rewrite and proceed with give it away model?

                                                                          i.      Hard to define to less than 20% of market

b.      Other model

                                                                          i.      Market model – if publisher required to produce file format in national format definition will they be able to produce materials accessible and be compensated for those in a way that is reasonable so that publishers may compensate other rights holders?

                                                                        ii.      Certainly this speeds up getting it into the classroom.

1.      When you order text book, you order certain number of accessible versions.

2.      Some states asking for electronic version of all materials

3.      Size and weight issues also come in

                                                                      iii.      Why this model could work

1.      1999-2000 - $50 billion spent on special education services in 50 states and DC

2.      Costs $12, 474 public school expenditures for special ed compared to little more than $5,000 per regular student

3.      National avg – one percent of expenditures on textbooks.  So $125 per special ed vs. $65 per non-special ed

4.      That money is not going to the publishers today [hmm… there’s a difference between rights payments and service/manufacturing profits]

5.      So, there’s a lot of savings being had on local school systems point of view – if we do it… [think about this some more]

Liz Delfs

Higher Education Publishing

Can easily spend 50 hours per week on nothing but accessibility issues. 

Seems like everybody is an expert on e-publishing and e-files. 

Same is also true on ace

Berkman Center doesn’t know a lot of business side of publishing.  A digital committee is set up – but we haven’t been invited.  We need to work together on matters like this.

E-File legislation – has faulty assumptions

            a) We put everything on files

            b) We have the rights to everything

We see authors reticent to give over their rights

Nonetheless, horse is out of the barn.  We have to deal with it.

[handout of laws and presentation]

How the laws affect us.

Essence of issues – (Publishers don’t like scanning machines).  A disabled student does not trump copyright act.  Publishers didn’t care when they didn’t think the numbers were there to justify a market.

Now they see a market opportunity. 

The advent of digital texts allows content to be flawlessly reproduced.

Some 55,000 took tests of non-standard administration.  Thinks that translates to only a quarter million students – less than 2 percent may qualify for alternative texts.

Community colleges (10.4 million students) huge potential.

Pearson- response to requests for e-files – had 6,000 requests last year.  This year, 6,000 in first quarter of 2004. Addison-Wesley had about 1,000.  This will only increase.

We’ve had to change the way we do business.  It takes personnel to find these files and respond to requests [hmm.. not using their computes very well].

With the legislation – colleges have responsibilities as well.  But, for college to use this legislation and just scan a book is not right.

Whole issue of distribution is important to us.  Particularly with the authorized entities. Pearson is not going to tolerate with content taken under Chafee and distributed to larger population such as IDEA as that impacts our market directly.

We do have common interests (college and publishers) if we can all sit at same table.

Churchill Hall Doctrine

Students should enter through the front door – not wait for the entrance to be unlocked.

Tennessee v. Lane (this week) Sup. Ct. backed rights of disabled over sovereign immunity

Now I have seen millions of Carlos’ needing files that are proliferating throughout the country. 

The states

10 in number

If you can understand California – you can understand anything.

1. Oklahoma – colleges are encouraged to ask publishers
2. Missouri – preferential treatment for publishers making
3. Georgia – will do study – but hasn’t done the study yet
4. NY – drafted regulations and are at the table
5. Ca – leader
6. Arkansas – passes legislation doing similar
7. KY – telling publishers they are public entities
8. Nevada – setting on head
9. California – setting 508 as applying to CA state universities
10. Ohio – setting 508 policy – some states pick and choose

My advise is to just do it, make it accessible.

California – [you have all this]

Chris Goth – VP Harper Collings

What laws mean to a trade publisher

Current play of the law (how 30 state statutes impact)

A trade publisher publishes books of general interest to consumers.  Some of these books do find their way into the classrooms (particularly higher ed) but those are not the primary markets for trade publishing).

Another distinction (vs education) is trade publishers don’t have direct relationships with the higher ed schools – may buy from another distributor.  Trade publishers don’t enter into contracts with states.

These laws at present have relatively little affect – though we are cooperating to meet with needs.  These laws crafted with education publishers in mind. (Cites California definition of education publisher).  Other states impose requirement on publisher of textbook. [List of questions a legislator needs to review – Does this impact interstate commerce?  Is it practical?]

Harper refers a lot of requests to bookshare.org.  Has 15,000 titles available. 

Real impact of these laws on us is indirect. [wonder what the work flow diagram for requesting permissions is like]

Note – under copyright laws – there are no such things as electronic rights.  Author conveys some rights to trade publisher.  So, when we are requested to furnish copies, do we have the rights to do that.  Generally, yes.  The Harper author contract will generally give the publisher right to authorize publication in electronic formats.  In addition, contracts allow licensing of books for print disabled. [Why can’t all publishers simply expand their grant of rights to include licensing for print disabled?]

Exceptions are items embedded in trade books where the authors had to seek permission.  Often we are not granted the right for those version to be electronic.  A reprint of hardcover in paperback usually has no such rights.

I tend to agree with what Steve calls the market solution.  Because we are not pressed by states for digital copies of works and existence of bookshare, my sense is that trade books for print disabled is being met by market place. [I have to question that assumption]

[If the two sides don’t talk – professors will be forced to pick texts that can be provided in the preferred format]

Electronic Format vs. Alternative Format—we give the first, you create the latter.

But, if we publishers think we have it hard – the educators have it harder as they are stuck with the mandates and us/the copyright act.

Students shouldn’t be charged extra.  If it costs us more – we may charge more – maybe the college will pick it up. [Disable services should make list of available texts available to professors]

Rights –

Modified crossed fingers approach – when we don’t have the e-rights – this is not an exercise of electronic rights we are providing files to comply with mandatory state requirements/federal requirements.