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AAP’s Perspective on Accessible Curriculum Materials for K-12 Classrooms[1]

by Allan Adler[2]

As the principal national trade association of the U.S. book publishing industry, the Association of American Publishers (“AAP”) represents over 300 member companies and organizations that include most of the major commercial book publishers in the United States, as well as many small and non-profit publishers, university presses and scholarly societies. AAP members publish copyrighted hardcover and paperback books and journals in every field of human interest. In addition to their print publications, many AAP members publish electronic books (popularly known as “ebooks”) and journals, as well as computer programs, databases, and other copyrighted electronic works for use in online, CD-ROM and other digital formats. 

AAP’s membership also includes our nation’s leading educational publishers, who produce (in a variety of media formats) textbooks and other instructional and testing materials that cover the entire range of elementary, secondary, postsecondary and professional educational needs.

AAP has a long record of accomplishment in its cooperative efforts to meet the special needs of individuals who are blind or have other disabilities that make it difficult or impossible for them to read print materials. Working with Congress, state legislatures, educational agencies, and a variety of advocacy groups for individuals with print disabilities, AAP has been a key partner in (among others):

• Drafting and securing the 1996 enactment of the so-called Chafee Amendment (17 U.S.C. 121).  This landmark revision of U.S. copyright law enables certain authorized entities to proceed without securing permission from the copyright holder when reproducing or distributing copies of a broad range of previously published literary works in specialized formats exclusively for use by blind or other persons with disabilities.

• Providing the electronic files needed by state educational agencies to facilitate the conversion of textbooks and other print instructional materials into accessible specialized formats for timely use by elementary and secondary school students and teachers, as well as (more recently) for use in postsecondary education.

• Assisting Benetech, a nonprofit assistive technology organization, in the development of its “Bookshare” website, which makes a variety of legally “scanned” books available to qualified online subscribers for downloading in specialized (DAISY and digital Braille) formats suitable for use by individuals with visual or other print disabilities.

• Working with Recording for the Blind & Dyslexic (RFB&D) to develop the components of intellectual property protection and rights management policies in connection with its release of the new AudioPlus books.

• Drafting and obtaining House and Senate introduction of the “Instructional Materials Accessibility Act” (IMAA) – proposed federal legislation designed to help streamline the ordering and current state and local authority-driven processes for facilitating the conversion of textbooks and other print instructional materials into accessible specialized formats in order to ensure more timely availability of those materials for elementary and secondary school students.

These efforts are not undertaken by AAP with the goal of enhancing revenue opportunities for its members.  In fact, publishers typically are not compensated either for the actual costs of producing the electronic files used for conversion of print materials into specialized formats, or for the individual copies of their works that are reproduced and distributed in specialized formats. Rather, these efforts are driven by a combination of pragmatic and altruistic considerations that largely ignore the financial costs – and the absence of direct financial benefits – to publishers while significantly contributing to implementation of the public policies embodied in federal laws such as the Individuals with Disabilities Education Act, the Rehabilitation Act, and the Americans with Disabilities Act.

At the K-12 level, publishers are confronted with a number of challenges in their efforts to help provide students with accessible curriculum materials in timely fashion. In the case of textbooks and other core instructional materials, these efforts usually occur in connection with a publisher’s contractual agreement with state or local educational agencies regarding the purchase of such materials from the publisher. Perhaps the greatest source of the challenges faced by publishers in this context is the patchwork diversity of requirements among the states and, sometimes, even within certain states, regarding the publisher’s obligation in meeting accessibility needs.

Although textbooks and other core K-12 educational materials are generally purchased by local educational agencies for use by students during the relevant school term, the purchase process – and any accompanying obligations that are undertaken by publishers to help ensure that such materials will be available, as needed, in specialized formats – differs from one state to the next. While 20 states have a formal “adoption” process through which these materials are approved at the state level for use in the appropriate grades by all public schools throughout the state, the rest of the states are “open territories” in which the selection of instructional materials takes place through a variety of less formal processes at the school district, building, or even individual classroom level.

Typically, the publisher’s primary responsibility in helping the relevant state or local educational agency to discharge its legal duty to meet student accessibility needs with respect to print instructional materials is to fulfill a contractual or related statutory/regulatory obligation to provide to the agency – typically upon request – the required textbook in the form of an electronic file suitable for use in reproducing the material in a specialized format for accessibility, such as Braille, synthesized speech, digital text, or large print.

However, the patchwork diversity of state and local government requirements regarding matters such as the kinds of materials for which the publisher may be required to provide an electronic file, as well as the format of the electronic file that is to be provided by the publisher, means that publishers must be prepared to produce multiple electronic files in different formats for each of their textbooks or other instructional materials in order to comply with the individual requests they receive from different states or different localities within a single state.

Because the file formats widely used by publishers in the final production of instructional materials are wholly unsuitable for use in reproducing the materials in specialized formats, publishers must engage in the labor-intensive process of converting the file into a format that is suitable to that purpose when they are called upon to provide such an electronic file. Some state and local requirements offer publishers the option to choose among a variety of formats in which they may provide the requisite electronic files. However, the file format that is most commonly offered as an option and provided by publishers – ASCII text – is both difficult for the publisher to produce and useless to the publisher after production. Worse yet, the ASCII format is ill-suited for efficient conversion into specialized formats because it requires a time-consuming and labor-intensive process of “tagging” in order to structure the file to reflect as closely as possible the actual visual characteristics of the printed materials.

Despite the publishers’ efforts, instructional materials in specialized formats frequently do not get to the students who need them in the most timely manner, which is at the same time fellow students without print disabilities are receiving their copies of the materials. In additions to delays attributable to technical elements of the conversion process, the problem results from delays in the educational agencies’ request process, including difficulties in identifying and locating the appropriate publisher contact to whom the request should be directed. Delays also occur in the handling process through which the electronic file provided by the publisher eventually reaches the people who actually convert the file into one that can reproduce the materials in the needed specialized format and, finally, reproduce and distribute that version. This process can take as long as 6 months.

Fortunately, digital technological developments continue to provide better options for providing print materials in specialized formats to students and others who need them. The advent of Extensible Markup Language (XML) -based options means that a more flexible, nonproprietary set of standards for tagging information for digital transmission and use is becoming widely available, providing the capability to convert print materials into specialized formats – including “digital talking books” – with greater efficiency, quality and interoperability than has previously been permitted by other extant formats. At the same time, the use of CD-ROMs and websites as distribution mechanisms, along with improvements in conversion and translation software, afford greater opportunities to meet accessible curriculum material needs.

However, the increasing reliance on digital technologies in this area means that publishers face substantially increased risks that their textbooks and other instructional materials can be flawlessly reproduced and widely distributed without their authorization, causing great harm to the publishers’ markets when such unauthorized copies can substitute for the purchase of such materials that would otherwise take place. Once the instructional materials are available in digital formats that facilitate online transmission and display, as well as downloading onto CDs and the use of digital audio capabilities, those versions of such materials can be used just as easily by persons without print disabilities as by those with such disabilities. This problem becomes more acute as publishers are urged to adhere to “universal design” concepts for the materials they produce, and to serve a much more broadly (but less clearly) defined community of students with “learning disabilities.”

As a result, publishers are now faced with even greater concerns that state and local educational agencies, as well as the growing number and variety of ancillary programs and projects that claim the authority of the Chafee Amendment to reproduce and distribute previously-published literary works in specialized formats, are properly exercising that limited authority as Congress intended.

While publishers can protect their investment interests through contractual licensing and related use of digital rights management (DRM) technologies and processes, it must be recognized that sometimes there are materials included within a published work that are subject to copyright claims which are separate from those that the publisher has in the textbook as a whole work. For example, certain images, graphs or textual material in a textbook that were provided by a contributing author may be authorized for inclusion only in the print version of the textbook; in such a case, the publisher may be violating its license agreement with that contributing author, as well as that person’s copyright, if the publisher produces or facilitates the production of a digital version of the textbook.

Moreover, it is important to understand that the use of technological safeguards increases costs and adds other complications for publishers, as well as for state and local educational agencies and others involved in providing accessible curriculum materials to students. As illustrated by the controversy over the decision by some publishers to disable “text-to-speech” capabilities in “ebook” versions of particular works, there is usually some tradeoff between the use of DRM technologies to secure copyrighted works from unauthorized uses and the desired level of accessibility that can be provided by this media format.

While the problem of unauthorized reproduction and distribution of copyrighted works – in specialized formats or otherwise – is generally of less concern to publishers at the K-12 level than it is in connection with higher education, or for professional and popular reading constituencies, it is nevertheless a major issue which requires the attention and cooperation of those who work with publishers to meet the accessibility needs of persons with print disabilities.