Questions & Answers on Copyright for the Campus Community

1. What types of materials are covered by state laws requiring publishers to provide electronic formats?
   Usually, state e-text laws only apply to works primarily published for students in postsecondary instruction (for example, a college textbook, as opposed to a novel or other general interest book) that are, in the determination of the class professor, required or essential for success in a course in which the student with a disability is enrolled. Furthermore, a number of the statutes provide an exemption for the publisher in the case of instructional materials with complex formatting, such as mathematics and science materials, when technology is not available to convert them into a format that maintains their structural integrity and is compatible with commonly used Braille and speech synthesis software.



2. Who should make an electronic format request to a publisher on behalf of a disabled student?
   Any request should be made by the coordinator of services for students with disabilities, or by the official responsible for monitoring compliance with the Americans with Disabilities Act of 1990 (ADA), at the particular campus of the college or university where the student with a disability is enrolled. A sample permission form is provided in Appendix D.



3. Why are publishers required under these state laws to provide electronic formats to institutions?
   DSS offices are requesting e-text from publishers to help the offices meet the students' needs. However, the institutions, and not publishers, are the party legally responsible for providing disabled students with the necessary accommodations (such as electronic or other alternate formats) to have equal and effective access to instructional materials.



4. How is "e-text" used to assist students with disabilities?
   The e-text may be used directly by the student (such as with software tools that convert the electronic text into synthetic speech that is read aloud by the student's computer or handheld device), or converted by the institution into a specialized format for use by the student (such as where the DSS office contracts with a third party vendor to convert the text into Braille). The institution will often make structural revisions or enhancements to the e-text provided by the publisher, such as by reformatting it and/or embedding keywords (i.e., "tags") in the file to help the student navigate the text.

1. Who is required to provide alternate formats to students with disabilities?
   Under the federal Rehabilitation Act and Americans with Disabilities Act, most colleges and universities are required to provide disabled students with equal access to instructional materials in a way that makes them as effective for the student as the instructional materials provided to nondisabled students. Also, states have their own laws protecting the rights of the disabled and requiring institutions of higher education to provide accommodations for college students with disabilities. Publishers are not charged with providing the students equal and effective access to instructional materials, either under the federal or the state laws, although they work with the institutions on efforts to fulfill this goal. The only legal requirement for the publishers is to provide e-text to campus DSS offices in those states that have postsecondary e-text statutes (although as stated earlier, publishers often fulfill the institutions' requests for electronic formats regardless of whether the state has a law mandating it).



2. How is "student with a disability" defined in state statutes requiring publisher to provide e-text to the institutions?
   The definition varies from state to state. However, a number of states provide that in order for the publisher to be required to provide a file, the student must, in the determination of the DSS coordinator or ADA compliance official, have a disability that prevents her or him from using standard instructional materials.

1. What steps should be taken to protect the format from copyright infringement?
   
   By the Student—The student who receives the electronic or other specialized format of the instructional materials should be required by the institution to sign a statement agreeing to use the format solely for his or her own educational purposes, and agreeing not to copy, distribute, or share the format for use by others. For a sample form, please see Appendix E.
   By the Institution—If the college or university wants to make the file available on a server, it should implement a process, such as an identification and password system or other security system, to grant access only to students with disabilities for whom the college or university has requested an electronic format from the publisher and who sign the statement in Appendix E. The institution should supply the publisher with periodic reports letting the publisher know how many students are using the electronic format, and affirming that each student's eligibility has been certified, the standard materials are being purchased in each instance, and the students are always signing the agreement not to share or reproduce the materials.


2. Can the institution share the format with other institutions?
   If permission to share the files is not explicitly granted by the publisher when it provides the e-text, a request should be sent to the publisher in each instance by the institution that wants to receive from another campus either the electronic format provided by the publisher or another specialized format produced from the e-text. The permission request should contain all of the items in the sample form in Appendix D. It can indicate that an electronic format is not requested from the publisher, and that permission to use an existing format is instead what is being asked for.



3. What if the institution wants to re-use a format for additional students with disabilities who are enrolled there?
   The institution should send a permission request (Appendix D) to the publisher for each re-use of a format for an additional student.

1. How should the request be made?
   All requests should be sent to the publisher in writing, and should be signed by the DSS coordinator or ADA compliance official at the campus. A sample request form can be found in Appendix D. Some publishers also post their own request forms on their websites. For a list of publishers' contacts and, where applicable, the sites where the company's request information can be found, please visit the Higher Education Publishing section of AAP's website at www.publishers.org.



2. What types of electronic formats can publishers typically provide?
   Publishers may be able to provide files of their instructional materials in one or more of the following formats: PDF, Word, HTML, ASCII, and XML. Publishers report to AAP that the overwhelming majority of file formats requested by the institutions are Word and PDF. Some publishing houses, especially larger ones, use XML in parts of their workflow and may be able to fulfill requests for XML files. However, due to the very high costs incurred to tag the files in an XML format, even the largest houses do not use XML across their entire list of college instructional materials, and some smaller and medium-sized publishers report not using XML at all.



3. How quickly can a response be expected from the publisher?
   Response times vary, but it is not unusual for a publisher to need at least 20 business days to fulfill an electronic format request, and it can often take longer due to complex conversions, the need for extensive research of rights licenses, or other issues causing a delay. To help institutions obtain timely receipt of electronic formats from publishers, professors are encouraged to post lists of required course materials as far in advance of the semester as possible.



4. Do publishers sometimes face obstacles to fulfilling electronic format requests?
   Yes. Publishers often do not control the rights to provide content in electronic formats. Authors, photographers, illustrators, and other copyright owners who provide content for use in instructional materials sometimes withhold from the publisher the rights to reproduce and distribute their works in electronic format. Without these rights, publishers are impeded from providing an electronic format to a college or university, or at best may provide a file with the unlicensed content items deleted from it. Also, in the case of an older work, the book may have been produced through a process that did not result in the creation of a digital file, requiring the publisher to scan the work in order to provide e-text.

1. What should the institution do if it cannot obtain e-text from the publisher, and wants to produce an electronic format by scanning the work?
   The institution should make a permission request to the publisher, expressly indicating that the institution wants to scan the material, and providing all of the certifications contained in the request form in Appendix D.



2. Are publishers producing commercial products for the higher education market that are accessible to students with disabilities?
   Yes, publishers are producing accessible electronic editions of some textbooks, and they will introduce an increasing number of such editions in the future.



3. What is the "Chafee Amendment"?
   Section 121 of the U.S. Copyright Act is also known as the Chafee Amendment. Enacted in 1996, Section 121 provides that under limited, particular circumstances it is not an infringement of copyright to take a previously published, nondramatic literary work and reproduce or distribute copies of it in specialized formats for use “by blind or other persons with disabilities,” defined by a referenced provision as U.S. residents who are either blind or "other physically handicapped readers certified by competent authority as unable to read normal printed material as a result of physical limitations, under regulations prescribed by the Librarian of Congress..."
   
   "Specialized formats" as defined by Section 121 means "braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities."
   
   Section 121 provides that only an "authorized entity" may engage in the reproduction and distribution allowed under the statutory exception, and defines such a party as:
   
   

   "...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 the blind or other persons with disabilities." (Emphasis added.)

   
   Many educational institutions faced with the duty to meet the print accessibility needs of enrolled students simply have assumed that they qualify as "authorized entities" under Chafee. Some have assumed that they are covered under the exception when they scan print works into digital text, or arrange for the conversion of electronic files of such works provided by the publisher, for the purpose of reproducing the works in one of the authorized “specialized formats.”
   
   Given the limited definition of an “authorized entity” as set forth in the Chafee Amendment, a typical nonprofit educational institution will only qualify if such institution has a primary mission to provide specialized services, as described in the excerpted language from the statute above, for blind or other disabled persons. The definition appears to have been crafted with the intention of fitting the status of groups such as the American Printing House for the Blind, and Recording for the Blind & Dyslexic.
   
   It is also important to remember that the population of students with disabilities for whom postsecondary educational institutions are required to provide accommodations pursuant to the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act is broader than the population eligible to receive alternate formats from Chafee authorized entities. "Disability" under the ADA and Section 504 is defined as "a physical or mental impairment" that substantially limits one or more major life activities, whereas eligible individuals under the Chafee Amendment are limited to persons with physically based disabilities.



4. Can students obtain alternate formats from organizations such as American Printing House for the Blind, Bookshare, and Recording for the Blind & Dyslexic?
   Yes, if an organization is an eligible authorized entity and has the format available, and the student has made the necessary showing of a disability within the meaning of the Chafee Amendment. Each of the authorized entities has documentation requirements for determining whether the individual is eligible.



5. What is the Association of American Publishers (AAP) doing to address the challenges faced by educational institutions and publishers in their efforts to provide accessible textbooks to the students?
   In March 2006, higher education publisher members of AAP announced the launch of their Alternative Formats Solutions Initiative (AFSI), a national effort to identify ways to provide print-disabled postsecondary students with specially formatted course materials on a timely basis. The Initiative will involve colleges and universities, students, DSS professionals, national and state disability advocacy groups, and technology providers in an effort to create a national framework of specific, practical solutions.
   
   AAP members were active participants in the American Foundation for the Blind’s Solutions Forum that successfully worked with disability groups to create a federal solution for students in grades K-12, supporting the development and passage of the Individuals with Disabilities Education Improvement Act (IDEA) of 2004. While no decision has been made on what approach will best address the needs in the postsecondary sector, such as a voluntary system or some form of legislation, the Solutions Forum provides a precedent for successful collaborative efforts among the various interested parties.
   
   Building on AAP’s work in the K-12 area, the Association and its higher education publishers initiated their postsecondary efforts in April 2005 at a meeting of stakeholders in Washington, D.C. In December 2005, AAP hosted a meeting for the Association on Higher Education And Disability (AHEAD) with publishers, college and university personnel, and other advocacy groups to gather input on how to move the process forward.
   
   AAP's members are also building a website interface to help DSS professionals search for the appropriate contacts at textbook publishing companies from whom to request electronic formats and/or scanning permissions, and to enable publishers to keep their information on the site up to date.

Introduction | Q&A Concerning Copying Print and Digital Works | Obtaining Permission to Copy
Obtaining Electronic Formats From Publishers | Guidelines for Classroom Copying
Details on Kinko's and Michigan Document Services Cases | Credits