Submission Date:
Question:
My institution subscribes to the "Kurzweil Reading Program", a "Text-to-Speech" product for those with reading impairments (dyslexia, English language learners, blind/vision impaired, etc.)
Section 121 indicates these users are "eligible persons" for "fair use", but others, without such disabilities could use the program (like an audiobook in the car!).
We'd be putting TEXTBOOKS up in the program; that fair use violation is what I'm worried about....
Thanks!
Answer:
This question reflects the level of savvy "Ask the Lawyer" readers bring to their submissions. The member submitting the question has already set out (in a manner much more succinct than I usually achieve) the interplay of:
- Owner's rights (Copyright Act Section 106),
- Adaptive copies made under "fair use" (Copyright Act Section 107), and
- Copies made for purposes of accommodations for disability that impacts the ability to read (Copyright Act Section 121).
I do have one quibble with the member's phrasing, though, and it is important to this particular issue: Section 121, while it allows copies otherwise barred, does not create a "fair use" right to make a copy.[1] Rather, the creation of an adaptive copy under Section 121 is a 100% exception to infringement made under highly precise circumstances.
What are those "highly precise circumstances"?
First, as the member writes, the end-user of the copy must be "eligible"--meaning they have a disability that impacts the ability to read (for the three "ways" for a user to be "eligible", see sub-section (d)(3)(A)-(C) of the law, below).
Second, the copies must:
"(A) not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;
(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and
(C) include a copyright notice identifying the copyright owner and the date of the original publication."
And third, the maker of the copies must be an "authorized entity" (which is defined in the statute; see the definition, below[2]).
This precise formula, and the right it creates, is why "fair use" is not a part of the issue at hand (adaptive copies specifically for reading-based disabilities). None of the above-listed requirements are required to claim "fair use" under Section 107[3]. In addition, to make a Section 121 copy, there is no four-factor "balancing" test; rather, a Section 121 use is "inherently noninfringing."[4]
The above-listed Section 121 requirements to include copyright notices are also the key to addressing the member's concern: enforcement.
When an "authorized entity" is creating Section 121-based copies for "eligible" people, the institution must put copyright notices on each copy. This sets up the institution--as either an employer or alma mater--to restrict non-eligible employees and students from using them for non-Section 121 purposes. Further, in addition to the required notices, the institution can add additional warnings, and if needed, restrict use through technological controls.[5]
Now, how much should an institution police this? Currently, there is no case law that turns on an alleged infringement that was committed via unauthorized use of a duly made Section 121 copy. That said, content owners are always looking for new ways to maximize revenues, so taking care to properly designate Section 121-based copies as required by law, and using policy and posted notices to reinforce those restrictions, is a wise idea.
Thank you for a well-informed and nuanced question!
HERE IS SECTION 121 OF THE COPYRIGHT ACT:
(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work or of a previously published musical work that has been fixed in the form of text or notation if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons.
(b)
(1) Copies or phonorecords to which this section applies shall—
(A) not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;
(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and
(C) include a copyright notice identifying the copyright owner and the date of the original publication.
(2) The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.
(c) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if—
(1) the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency;
(2) the publisher had the right to publish such print instructional materials in print formats; and
(3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in accessible formats.
(d) For purposes of this section, the term—
(1) “accessible format” means an alternative manner or form that gives an eligible person access to the work when the copy or phonorecord in the accessible format is used exclusively by the eligible person to permit him or her to have access as feasibly and comfortably as a person without such disability as described in paragraph (3);
(2) “authorized entity” means a nonprofit organization or a 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;
(3) “eligible person” means an individual who, regardless of any other disability—
(A) is blind;
(B) has a visual impairment or perceptual or reading disability that cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or
(C) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading; and
(4) “print instructional materials” has the meaning given under section 674(e)(3)(C) of the Individuals with Disabilities Education Act.
(Added Pub. L. 104–197, title III, §â€¯316(a), Sept. 16, 1996, 110 Stat. 2416; amended Pub. L. 106–379, §â€¯3(b), Oct. 27, 2000, 114 Stat. 1445; Pub. L. 107–273, div. C, title III, §â€¯13210(3)(A), Nov. 2, 2002, 116 Stat. 1909; Pub. L. 108–446, title III, §â€¯306, Dec. 3, 2004, 118 Stat. 2807; Pub. L. 115–261, §â€¯2(a)(1), Oct. 9, 2018, 132 Stat. 3667.)
[1] I'm quibbling, but I want to take this footnote to state that including a "fair use" cite in the question is very reasonable, because fair use is often cited as yet another reason to make adaptive copies that go beyond copies authorized by Section 121. Since the copies in this case are without question for those "eligible" under Section 121 (those with reading-impacting disabilities), we're going to sideline fair use at Section 107 for this question, but it very much is a part of the toolbox of creating adaptive works for non-Section 121-eligible disabilities.
[2] There is controversy, but no definitive authority, on if all not-for-profit educational institutions meet the criteria. Academic publishers have taken a position that it only applies to institutions for the blind, not just any old school or college. However, an uncontradicted conclusion in the October 10, 2012 district court decision in Authors Guild V. Hathitrust, 902 F. Supp, 2d 445 (2012) opines that because of their mandate to provide accessibility under the ADA, such institutions all are "authorized entities" under Section 121. Until I read otherwise, my guidance errs on the side of accessibility (see https://wnylrc.org/index.php/raq/accessibility-options-school-ebooks).
[3] In fact, having to abide by this type of requirement could undercut some of the more vital applications of fair use, such as parody or innovation.
[4] If this distinction intrigues you, check out the commentary at https://www.copyright.gov/1201/2021/comments/Class%2008_InitialComments_Accessibility%20Petitioners%20II.pdf
[5] I am slightly wary of a system that would force a student to "register" with the library as needing ADA accommodations, but depending on how access is granted, some type of additional log-in or control might be wise. At higher ed institutions, students and employees arrange accommodation per a policy, and accommodations are generally confirmed in writing, so signing up for access to adaptive copies could be the way to go. But this will be driven by technology, and care must be taken to not put up any additional hurdles to access. If any readers out there have solved this issue at your institution, I'd appreciate hearing about it! Please send that to [email protected].
Tag:
Accessibility, Accomodations, ADA, Copyright, Fair Use, Textbooks, Disability
