AHEAD Analysis of Section 121: Chafee Amendment

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 121 of the U.S. Copyright Act (the Chafee Amendment):

In 1996, the U.S. Copyright Law (Section 121) was amended to allow authorized entities to reproduce or distribute copies of previously published nondramatic literary works if the copies were reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities. The AAP identifies the purpose of the Chafee Amendment as

“[elimination of] the need to compensate or obtain permission from a copyright owner, and thus save resources and provide greater efficiency, in the process of reproducing and distributing certain copyrighted works in formats that are accessible to persons who are blind or otherwise have difficulties making conventional use of print materials.”

Prior to the amendment, long delays often prevented blind and other students with disabilities from receiving accessible formats of the print material available to their peers and required for success in their educational program. The Chafee Amendment was passed to facilitate the creation of accessible formats of print materials for the benefit of these students.

Defining an authorized entity:

The Chafee Amendment defines an “authorized entity” as a nonprofit organization or 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 (emphasis added).9 Read broadly, colleges’ and universities’ disability services departments should be included within this definition. Colleges and universities are nonprofit organizations whose primary mission is to educate students, including students with disabilities. That mission can only be accomplished when full access is accorded all enrolled students.

The AAP argues that Congress did not intend the typical educational institution, solely by virtue of its legal responsibility to accommodate students with disabilities, to qualify as an “authorized entity.” To defend this proposition, the AAP focuses on the “primary mission” section of the statutory text, arguing that the Chafee Amendment was created to “expand the capabilities” of programs like the National Library Service for the Blind (NLS) and Recording for the Blind and Dyslexic (RFB&D), and not to specifically meet the educational needs of students with disabilities.

While the amendment did expand such programs, that benefit is collateral. The Congressional Record is clear that the goal of the amendment was to end the unintended censorship of blind students’ access to current information, to prevent the delays that created a barrier to blind students being informed and literate. The ultimate beneficiary of this amendment is not third-party organizations, but persons with disabilities. The focus should remain where Congress intended 10– on access to print-based materials and not on the “primary mission” of an organization that facilitates such access.

Colleges and universities, and especially their disability services offices, should be recognized as “authorized entities” as defined under the Chafee Amendment. Failure to do so prevents institutions from meeting their legal obligation to provide access to their programs and services. A decade ago, only the most visionary could have imagined the opportunities for ready and effective access provided by today’s technology. At that time students were generally limited to depending on human readers, obtaining Braille or linear audiotape materials from NLS, RFB&D, and other traditionally recognized authorized entities, or personally scanning print materials page-by-page to create non-navigable digital text. Today’s technology, fueled by digital files, provides far more effective, efficient, independent access to text resources. It would be the ultimate irony to conclude that students can have access to the technology that can provide access but not to the electronic files for use with the technology.

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 AAP 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 right to auxiliary aids and services under the ADA and Section 504.

Again, AHEAD believes the civil rights of students with disabilities must be considered superior to publishers’ contractual rights. In the end, it is the students–the intended beneficiaries of the amendment 11– who are damaged, not the publishers. It would be manifestly unjust not to allow colleges and universities to provide these accommodations in-house.

Covered disabilities:

AHEAD supports efforts to develop a Universal Design approach to education wherein a variety of formats would be available to all consumers depending on their preference and not dependent on disability status . However, the issue here (and that addressed in all state e-text laws) is not universal access, but access for students with disabilities that interfere with their ability to use standard print. If a market exists or develops for digital options, we trust publishers will recognize such and market accessible materials directly to consumers. At the point when any material is commercially available in an appropriate accessible format, therefore, this organization will recommend that no further institutional conversions be made.

The AAP appears to argue that the exemption in the copyright law only applies to blind and physically disabled students. However, that argument does not address the fact that there are students with other print disabilities who will be unable to access educational materials if the Chafee Amendment and other relevant statutes are read so narrowly. The majority of students needing alternate format print materials are identified with dyslexia and other learning disabilities. Additionally, as the biological and neurobiological bases of some learning disabilities that impair students’ access to print are better understood, a compelling argument is made for students with learning disabilities to be considered “physically disabled.” Similarly, no rational argument can be made for excluding students with traumatic brain injuries (or other organic brain dysfunctions), whose symptoms may be similar to those of students with learning disabilities. In fact, both RFBD and Bookshare currently serve these populations.

In 2004, the AAP and many large publishing houses agreed to the inclusion of the following language in the New York State Implementation Guidelines for Chapter 219 memo12:

“A print disability: The disability services coordinator or 504/ADA compliance officer should use professional judgment to determine whether a student has a disability that prevents him/her from using standard instructional materials. In general, a print disability results in the inability to effectively utilize print material and may include blindness, some specific learning disabilities, or the inability to hold a book.”

Colleges and universities are legally obligated to provide appropriate accommodations, such as e-text, to all qualified students with disabilities, not just blind or physically disabled students. Applying the AAP’s limited statutory construction would leave these students without the ability to access required educational materials. Congress could not have intended this result.

Covered formats:

The AAP contends in its memo that “digital text” within the Chafee Amendment refers only to the process by which scanned text may be used by blind persons with specialized text-to-speech translation software, rather than to digital text that might be freely transmitted via the Internet or burned into CDs. Thus, it claims that “digital talking books” and other current and developing formats that not only serve accessibility needs but may also prove attractive for use by persons without disabilities were not contemplated within the scheme of the Chafee Amendment. While this may be true, the AAP’s argument is unsubstantiated by current laws. As technology evolves and becomes more sophisticated, so do our laws. The VCR was not created nor thought of during the drafting of the copyright law, yet the Supreme Court held that consumers may video record programs.

Students with disabilities should not be relegated to using outdated technology simply because the latest technology was not contemplated at the time the Chafee Amendment was drafted. Students with disabilities must have access to the latest technology available to improve their access to text materials and permit them to compete equally on the academic playing field.