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Textbooks in Alternate Format: Higher Education
Copyright vs. Civil Right
Editor's Note: AHEAD is the premiere professional association committed to full participation of persons with disabilities in postsecondary education. AHEAD addresses current and emerging issues with respect to disability, education, and accessibility to achieve universal access. The information below was reprinted with permission from a Position Statement titled, "AHEAD’s
Perspective on the Issues of Textbook Access" which was published in December, 2006. For more information about AHEAD and the complete text of the position statement, visit the website at www.ahead.org.
The NIMAS/NIMAC requirements of IDEA 2004 apply only to P-12 and do not include higher education. Therefore, in December, 2006 the Association on Higher Education and Disability (AHEAD) posted a position paper on the need to provide access to textbooks in college. The complete statement can be found on their website: www.ahead.org. Below are excerpts from this position statement.
Lack of timely 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 or the 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).
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 Association of American Publishers 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 rights to auxiliary aids and services under the ADA and Section 504.
AHEAD believes the civil rights of students with disabilities must be considered superior to publishers’ contractual rights. In the end, it is the students who are damaged, not the publishers. It would be manifestly unjust not to allow colleges and universities to provide these accommodations in-house.
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 of the U.S. Copyright Law (Section 121), 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.
