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Federal and State Legislation

Regarding Accessible Instructional Materials[1]

by Erica S. Perl[2]

The Pratt-Smoot Act

In 1912, a man named J. Robert Atkinson was blinded in a gunshot accident. As a blind man, he was disappointed to find that there were few braille books available. Undaunted, Atkinson enlisted his family to dictate to him and he transcribed by hand until he had built a personal library of more than 250 titles.  He later became a Braille publisher and an inventor. In 1934 he devised a way to compress the number of words per record and devised the first talking book system.  He called it the “Readophone” and its long-playing discs boasted two hours and twenty minutes of recording time (the equivalent of twenty-eight thousand words).  His lobbying efforts influenced the passage of the Pratt-Smoot Act of 1931.

The Pratt-Smoot Act is also known as “An Act to Provide Books for the Adult Blind.”[3]  It is important historically because it established the Division for the Blind of the Library of Congress (now known as the National Library Service or NLS), as well as because it has been incorporated into the Chafee Amendment. 

The Chafee Amendment

Whereas the Pratt-Smoot Act was a law that established a special library and allocated funds to support it, the Chafee Amendment is part of the 1996 revisions to the Copyright Act.  It specifically provides an exception to the standard requirement that all users of copyright-protected works obtain permission prior to reproducing or distributing the work.

The Chafee Amendment specifies that it is not a violation of the Copyright Act for authorized non-profit agencies to reproduce or distribute copyright-protected works for persons with certain specific verifiable disabilities.[4]  This provision, named after the bill’s sponsor, Senator John Chafee of Rhode Island, enables individuals with qualifying disabilities to obtain printed materials in alternative formats.  The process that the Chafee Amendment dictates requires that authorized entities screen recipients and provide access to their collections to only those users that are able to demonstrate qualifying disabilities.

Section 504 of the Rehabilitation Act

Section 504 of the Rehabilitation Act of 1973 is an anti-discrimination provision.[5]  Section 504 applies to any elementary or secondary education program or activity as long as the program or activity receives Federal financial assistance.  As Section 504 defines its terms it applies to the operations of a State department of education, special school districts, and elementary and secondary school systems.[6]

The regulations implementing section 504 set out certain prohibited discriminatory actions, such as denying an individual with disabilities the opportunity to participate in activities and providing separate and unequal services to such an individual.[7]  In addition, the regulations require that recipients of Federal funding make adjustments to programs as necessary to afford individuals with disabilities “an equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person's needs.”[8]  However, although section 504 prohibits a recipient of federal assistance from denying benefits of a program or activity to a person with a disability, courts often emphasize that it does not require the recipient to take “affirmative action” for the benefit of persons with disabilities.[9]

IDEA

The Individuals with Disabilities Education Act (IDEA)[10] requires that public schools make available to all eligible children with disabilities a free appropriate public education in the least restrictive environment appropriate to their individual needs.  IDEA requires public school systems to develop appropriate Individualized Education Programs (IEP's) for each child. The specific special education and related services outlined in each IEP reflect the individualized needs of each student.[11]  Increasingly, parents and educators are becoming aware of the ways that assistive technology can help students with disabilities access the general curriculum.  Consequently, more and more IEP’s are being written to contain specific statements of methods and goals that relate to the use of digitally accessible materials and technological support devices such as text-readers.

It should also be noted that the future of IDEA is currently unclear.  The law is scheduled for reauthorization in 2002 and it may be revised in ways which shift its focus and requirements. 

Distinguishing Between Section 504 and IDEA

If a child has a disability that adversely affects educational performance, this child will be covered under IDEA.  All children who are eligible for special education under IDEA automatically receive Section 504 protections.  However, if a child has a disability that does not adversely affect educational performance, the child may be covered under Section 504, but will not receive special education services under IDEA. 

For example, under Section 504 a child in a wheelchair cannot be discriminated against because of the disability. This child shall be provided with access to an education, to and through the schoolhouse door.  However, Section 504, unlike IDEA, does not guarantee that the child will receive an education from which the child benefits.  This child has access to the same education that non-disabled children receive.  Of course, if the child in the wheelchair also has a learning disability that adversely affects educational performance, he will be entitled under IDEA to an education that is individually designed to meet his unique needs and from which he receives educational benefit.

Section 504 is a particularly important federal law for post-secondary school students, who are not covered under IDEA.  If a disabled college student faces discrimination, the student can assert a federal claim under Section 504 as well as other federal laws, including the Americans with Disabilities Act (ADA).  Many states offer specific remedies for disabled persons who encounter discrimination in educational settings.

Section 508 of the Rehabilitation Act

Section 508 of the Rehabilitation Act of 1973 establishes requirements for electronic and information technology developed, maintained, procured, or used by the Federal government. Section 508 requires Federal electronic and information technology to be accessible to people with disabilities.  An accessible information technology system is one that can be operated in a variety of ways and does not rely on a single sense or ability of the user. For example, a system that provides output only in visual format may not be accessible to people with visual impairments and a system that provides output only in audio format may not be accessible to people who are deaf or hard of hearing.[12]

Consequently, any organization or company that contracts with the Federal government must ensure that its website and electronic data are available to the public in a manner that is accessible to people with disabilities. 

The Law Meets the Classroom

It should first be noted that the aforementioned statutes do not share a common definition of disability.  Consequently, a student that might be considered “disabled” under the Rehabilitation Act may not be “disabled” under IDEA.  Also, many students that are considered to be “disabled” under both Section 504 and IDEA do not have the specific qualifying disabilities to entitle them to receive copyright protected works under the Chafee Amendment. 

And yet if a student’s IEP specifies that he needs to receive the same curriculum materials as his classmates, only in an accessible format, schools may be hard pressed to provide such items.  Most textbooks do not currently exist in accessible formats and can only be rendered “accessible” by teachers if they scan or re-type them.  Replicating a textbook manually by scanning it or re-typing its text is extremely time-consuming and wasteful of human resources (particularly if every school independently scans textbooks).  In addition, although scanned text can be enlarged and rearranged to make it easier to read, it has inherent limitations. 

Digitizing print materials is a multi-step process: Print pages are processed (“scanned”) using a flatbed or high-speed scanner and the page is recorded as an image file. That image is then processed by Optical Character Recognition software (OCR) which translates the image into an editable, digital document (i.e. the “picture” of the printed words is translated into actual digital text that can be manipulated). Once the print has been transformed into digital text, it must be edited for accuracy.[13]

Digitizing and proofing a textbook can take anywhere from three to fifteen minutes per page. Once the material is in a usable format, a system of archiving and distribution needs to be established.  With the increasing availability of data networks in school districts, the actual transfer of these materials from classroom to classroom is becoming easier.  However, the issue of security remains since the majority of the content scanned is copyrighted and most students are not eligible to use it.  Complying with both security and record-keeping requirements related to scanned materials can be very difficult, time-consuming and costly for school districts.

In addition, the current trend toward the involvement of all students in “one-size-fits-all” high stakes test results in the increased need for accessible materials to be prepared so that all students can have meaningful access to the same material before being tested on it.  In most school settings, it is unrealistic to expect that instructional personnel will have the time available to digitize textbooks and test-prep material. This task may then be assigned to aides or paraprofessionals, which means they then may not be available for direct work with students. 

Thus, educators and school systems often face difficult decisions regarding the allocation of precious resources to assist students with disabilities.  They also face confusing choices about whether to obtain or provide accessible materials for specific students to satisfy the legal requirements of some statutes (like IDEA) without violating others (like the Copyright Act). 

Looking Into the Future

IMAA

On April 24, 2002 a bill called the Instructional Materials Accessibility Act of 2002 (IMAA) was introduced into both the House and the Senate.[14]  The bill promised to improve access to textbooks dramatically for students who are blind or have other disabilities that impair their use of printed material.  The bill would create an efficient system for acquiring and distributing instructional materials in a variety of specialized formats, including Braille, synthesized speech, digital text, digital audio, and large print.

To do this, one standard electronic format for making school textbooks digitally accessible would be established.  According to Senator Christopher Dodd, a sponsor of the bill, twenty-six states currently require publishers to provide a copy of school textbooks in an electronic format.  However, because there is no standard in practice to regulate this process, schools have been receiving textbooks in a variety of file formats.  In addition to adopting a standardized, national electronic file format, the bill would set aside $1 million to create a central depository called the National Instructional Materials Access Center for easier and faster access to these materials.[15]

If the legislation is enacted, states and local school districts that receive federal funding will have two years to make sure visually impaired students can access all educational materials at the same time as their peers.  Textbook publishers will be required to submit electronic files of all textbooks according to a universal standard, making it easier for schools to convert instructional materials into accessible formats. Textbook publishers will also have to provide schools with a written agreement that says they agree to submit an electronic format of the book within 30 days to the Center.[16]

Recently Proposed Federal Legislation

In July, 2002 the United States House of Representatives Judiciary Committee unanimously approved a bill that would make it easier for educational institutions to use films and songs in online instruction.  The bill, called the Technology Harmonization and Education Act or “TEACH” (S 487), was identical to a bill the Senate approved in June 2001.  The legislation would expand the exceptions under the Copyright Act of 1976 that allow colleges and schools[17] to use copyrighted material for instruction without securing copyright holders' permission.  The act allows distance-education providers to digitally transmit nondramatic literary and musical works.  Under the bill, they would also be able to show students selected portions of movies, plays and other dramatic works.

There is also a bill currently pending in the United States House of Representatives[18] (sponsored by Rep. Howard L. Berman) that seeks to limit the liability of copyright owners for protecting their works on peer-to-peer networks.  The bill, H.R. 5211, would amend title 17 of the United States Code to provide copyright holders with the right to use technologies to prevent infringement of their protected works.  The bill states that a copyright holder “shall not be liable in any criminal or civil action for disabling, interfering with, blocking, diverting, or otherwise impairing the unauthorized distribution, display, performance, or reproduction of his or her copyrighted work on a publicly accessible peer-to-peer file trading network…”[19]  This bill, if enacted, could conceivably impact the growth and development of peer-to-peer educational networks.

New State Laws on Instructional Materials

            As Senator Dodd noted with regard to the IMAA, many states have begun to draft and adopt laws regarding accessible curriculum materials.[20]  Their provisions range considerably.  For purposes of comparison, here is a survey of six of them:[21]

Georgia has two pieces of legislation under consideration: 

1) Georgia 02 HB 1342[22] deals strictly with postsecondary, vocational, technical, and adult education colleges and universities.  It suggests that procuring textbooks after secondary school is more difficult than in the younger grades and charges the Board of Regents of the University of Georgia and the Department of Technical and Adult Education to direct a study towards implementing a clearing-house for postsecondary texts in alternative formats while preserving intellectual property rights of publishers.  This law was signed by the governor on May 14, 2002 but it is not yet in the Georgia Annotated Code.  This suggests that it will take effect July 1, 2003, at the start of the next fiscal year. 

2) Georgia 03 HB 228[23] will require that the publisher of any textbook recommended by the State Board of Education provide an electronic format version of the textbook.  It is currently pending before the state Senate and will be assigned to a committee for consideration.

Kentucky:  SB 243[24] gives preferential procurement status to those publishers who ensure the availability of alternative formats of textbooks; it requires public school textbook publishers to create electronic versions of their printed textbooks, and requires publishers to make digital files available upon request to the Printing House for the Blind and Recording for the Blind and Dyslexic.  This law was signed by the governor on April 9, 2002 and will be effective July 1, 2003.  

California:  The Education Code of California now requires publishers of K-12 instructional materials to provide the state with computer files or other electronic versions of each state-adopted literary title as well as the right to transcribe, reproduce, modify and distribute the material in formats designed to meet the needs of students with disabilities that prevent the use of standard instructional materials.[25]  The State Board of Education also adopted content standards for reading/language arts that require schools to incorporate the use of universally accessible instructional materials into their programs.[26]

New York: 2001 Bill Text NY A.B. 7926[27] requires each Board of Trustees, Board of Education, and Board of Cooperative Education Services to give preferential procurement status to those publishers that provide alternative formats (for each disabled student as defined by 29 U.S.C. 701) and to create a plan to ensure that alternative formats are provided at the same time as standard texts.  To receive funding for students with disabilities, a school must submit a proposal detailing how they will ensure the students’ timely access to materials.  The governor signed this law on October 23, 2001.  The law became effective April 21, 2002. 

Texas: Tex. Educ. Code § 31.028[28] requires that publishers provide electronic versions of printed textbooks upon request.  Texas statutes and administrative policies tend to focus on the blind, but the Office for the Education of Special Populations is more inclusive.  This code is administrative and not a legislative document, so the precise date of its enactment is unclear.  However, it appears to have been drafted in 2001 and enacted for 2002.

Maryland: 2002 Bill Text MD SB 226[29] requires State officials to choose publishers who provide accessible alternative formats.  This law was enacted on May 16, 2002 and will be effective as of October 1, 2002.

A Response to Chafee: Attempting to Comply

In recent years, schools and other non-profit organizations have taken a variety of approaches to provide students with disabilities with digital versions of curriculum materials.  Some of these methods comply with the letter of the Chafee Amendment; others do not, but may be acceptable if they are “fair uses” of the works in question or if the work is in the public domain.

The most common method of providing a student with a digital version of a textbook or other assigned printed material is to scan the material.  To create the digital version, a school employee or volunteer must individually scan each page.  Sometimes, schools maintain information about the materials that have previously been scanned and saved in a digital format.  Occasionally, schools even share their resources of scanned books with other schools in their district.  But by and large, scanning is done by individual teachers at a tremendous cost of time and effort, which can be particularly wasteful if other teachers have already scanned the same material.

If the printed material is copyright-protected, scanning it without obtaining permission to reproduce and distribute it is a violation of the Copyright Act (unless the requirements of the Chafee Amendment have been met).  Every day, individual teachers across the country reproduce materials for their students.  If indeed these are violations of the Copyright Act, they rarely lead to legal challenges.  However, it is important to note that these acts can lead to violations - even if the students who receive the handouts are disabled - if the requirements of the Chafee Amendment are not satisfied.

In order to comply with the requirements of the Chafee Requirement, a non-profit organization must have “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.”[30]  Many schools that do not qualify as “authorized entities” under Chafee, or that do not have the resources to create libraries of digital materials, serve their students by steering them to outside “authorized entities.”  These are non-profit organizations that operate repositories and serve as gatekeepers to their information by requiring proof of qualifying disability (as per Chafee’s mandate) from all potential users.  Although the resources of many Chafee repositories are growing, most do not have extensive collections of K-12 textbooks. 

A Response to Chafee: The Doctrine of “Fair Use”

The best defense to a charge of unauthorized reproduction or distribution of a copyright protected work is the “fair use” doctrine.  This doctrine allows for the limited reproduction of copyrighted works for educational and research purposes.  The relevant portion of the copyright statue provides that the “fair use” of a copyrighted work, including reproduction “for purposes such as criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is not an infringement of copyright. 

The law lists the following factors as the ones to be evaluated in determining whether a particular use of a copyrighted work is a permitted “fair use,” rather than an infringement of the copyright:

·        The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

·        The nature of the copyrighted work;

·        The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and

·        The effect of the use upon the potential market for or value of the copyrighted work.

Although all of these factors will be considered, the last factor is the most important in determining whether a particular use is “fair.” Where a work is available for purchase or license from the copyright owner in the medium or format desired, copying all or a significant portion of the work in lieu of purchasing or licensing a sufficient number of “authorized” copies would likely be deemed unfair. Where only a small portion of a work is to be copied and the work would not be used if purchase or licensing of a sufficient number of authorized copies were required, the intended use is more likely to be found to be fair.  Also, in some instances, districts have actually purchased the textbook in question for a print-disabled student who cannot use it.  Under such circumstances, the scanning of the purchased textbook so the student can have access to a digital version is likely to be seen as a fair use.

In the past few years, however, the status of the doctrine of “fair use” - particularly with regard to copyrighted works that are available in a digital format - has been a subject of considerable public debate because of the Digital Millennium Copyright Act (DMCA).  The DMCA was enacted in 1998 and it was originally intended to stop “copyright pirates” from circumventing technological security protections used to limit access to digital versions of copyrighted works.[31]  The DMCA specifically states that it does not affect the normal defenses and exceptions to copyright infringement, including fair use.  However, the DMCA does prohibit individuals and organizations from aiding the fair use of others by circumventing access controls on copyrighted information.[32]  Consequently, educators that use technology to alter the access controls of protected works in order to help their students make legitimate “fair use” of these works risk violating the DMCA. 

Critics argue that this provision could have chilling effects on free speech, education and research.[33]  Supporters of the DMCA maintain that the DMCA is necessary to allow copyright holders to protect their work from theft and unauthorized alteration.[34]  Research suggests that no court has yet ruled on the applicability of the DCMA to school-based uses of technology to unlock copyrighted material for the general student population or for students with disabilities.  However, this issue may come before the courts as a wider range of digital texts becomes available and is used in educational settings.
Exhibit A: Chart Summarizing the Provisions of Surveyed States