AHEAD Analysis of Section 107: Fair Use & Accessibility

AHEAD, the Association on Higher Education and Disability, has an excellent position statement on fair use and accessible texts for students with disabilities. Here is AHEAD’s analysis of Section 107 of the U.S. Copyright Act (Fair Use):

Whether the use of a copyrighted work constitutes fair use is determined on a case-by-case basis by applying the facts of each case to the four factors above.5 The four statutory factors are not to be treated in isolation; instead, their results should be weighed together in light of the purposes of copyright.6 Courts have held that the fourth factor, market harm, is the most important factor to be considered.7

Purpose and character of use. The purpose and character of the use in question is purely educational and nonprofit. These digital reproductions are undertaken solely to provide students with qualifying disabilities access to instructional course materials. In undertaking these reproductions, colleges and universities do not collect a profit; rather, they are performing their legal duty to provide appropriate accommodations for students with disabilities. The materials reproduced are educational texts used in conjunction with college coursework and are converted into digital formats for students’ individual study. Without such reproductions, students would be unable to access the course materials and could not benefit from the course materials they had purchased. The use is solely educational in nature and is restricted to students with disabilities that affect their ability to utilize standard print. This factor weighs in favor of fair use.

Nature of the work. The second factor looks at the nature of the copyrighted work and calls for the recognition that some works are closer to the core of intended copyright protection than others. Here the works being reproduced are highly protected literary works. However, even if this factor does not favor fair use, the totality of the factors does, since these factors are not to be looked at in isolation.

Amount and substantiality of the portion used. The third factor looks at the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Although the entire work is being copied, that is the only amount of the original work that is appropriate for the favored educational purpose; nothing less could be taken and still meet the educational purpose.

Effect on potential market for or value of the copyrighted work. The fourth fair use factor, the most important in this context, addresses the potential market for or value of the copyrighted work and the extent of market harm caused by the reproduction. No market harm is created by allowing colleges and universities to reproduce works as digital text. As stated earlier, AHEAD advocates that the student buy the course materials at the same cost as that of other students (sometimes, in fact, necessitating purchase of an unusable format in order to obtain a usable one). Therefore, the copyright holder and publisher still receive any revenue generated from the purchase of the material. The market for hard-copy materials is not supplanted. Colleges and universities are not buying one copy of a book and reproducing it for all of their students; there is a one-to-one ratio of books to reproduction. Instead, this is a controlled reproduction for personal educational use by a particular qualified student with a particular disability. There is no similar product marketed by the copyright holder for the student to buy and use. Again, and most importantly, there is no market harm because the student has purchased the original text and is simply creating or receiving a reproduction in digital form in order to access the paid-for content.

The publishing companies and copyright holders should not control how a bona fide purchaser uses the material so long as the work is not reproduced for use by multiple people or for commercial exploitation. Reproducing hard-copy text into digital form for the educational use of students with disabilities does not economically harm the copyright holder. “Copyright was intended to increase and not impede the harvest of knowledge.”8 Authors will not be discouraged from creating literary works. Reproduction of instructional materials for this limited, educational use must be considered fair use.

Position Statement | AHEAD: Association on Higher Education And Disability.