Policy, Property, and Permissions: A Discussion of Accessible Curriculum Materials

Source Documents for "Policy, Property and Permissions: A Discussion of Accessible Curriculum Materials" [1]

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On October 17 & 18, 2002, Harvard Law School welcomed participants to this two-day roundtable meeting. The event was developed and sponsored by the Berkman Center for the Internet and Society at Harvard Law School, the Harvard Children's Initiative, the National Center on Accessing the General Curriculum at CAST, and the Association of American Publishers.

A Discussion of Accessible Curriculum Materials

by Skip Stahl [2]

Throughout the United States, teachers of K–12 students are struggling to find curricular materials that are accessible and educationally relevant to students with disabilities. Because few of these products exist, many teachers are adapting their existing materials by copying or digitizing them so that they can be used with assistive technologies. On a national scale this results in a redundant and costly situation for schools and taxpayers alike. Many other teachers continue teaching without accessible materials, consequently failing to meet the learning requirements of students with special needs. This has considerable social costs for students and communities, particularly considering how many students have identified special needs.

Nationwide there are nearly six million K–12 students with identified special needs who are covered by the 1997 reauthorization of the federal Individuals with Disabilities Education Act (IDEA '97). Over 90% of the students served under IDEA in 1998 were classified in one of four disability categories-learning disabilities (51%), speech or language impairments (20%) mental retardation (11%) and emotional disturbance (9%). According to the U.S. Department of Education's Office of Special Education Programs, more students with disabilities are being educated in regular classrooms. In fact over 95% of students with disabilities ages 6-21 attend school with their non-disabled peers. These statistics reflect the very large group of diverse learners who must "access, participate and progress" in the general education curriculum.

The primary goal of IDEA '97 was to improve outcomes for students with disabilities by including them in the standards, methods, and accountability of the general curriculum.[3] To that end, IDEA '97 specifically requires that public schools adapt the content in general education classrooms to meet the specific learning needs of special education students. Underlying the law itself is the understanding that the format, content, means of presentation, organization, and means of assessment in standard curricular materials can themselves present barriers to many learners. For example, printed textbooks lack the flexibility that would support access to meaningful learning opportunities for students with disabilities.[4] In addition, students need more than access to content: they must be able to interact with and learn from the curriculum, meaning that the level of challenge and support, the means of self-expression, and the sources of interest and engagement are suitable for their skills and needs.[5]

However, when teachers face the challenge of modifying their existing curricula to meet the needs of students with disabilities, the task can prove to be daunting. To modify the "one size fits all" materials of most existing curricula requires enormous commitments of time, expertise and resources. This necessarily limits the available time for actual teaching and preparation.Although curriculum adaptation can be effective in individual instances, and can serve as a necessary stopgap, this approach does not contribute to a systemic solution.

Fortunately, technological innovation has enabled the transformation of print-based educational materials such as textbooks into flexible digital formats. Unlike print, where one size supposedly fits all, digital media can be adjusted for different learners. The nature of digital media provides flexibility and versatility that allows for multiple representations and multiple ways to interact with content. Digital text has the potential to provide greater accessibility to content.

State and Local Education Agencies, under growing pressure from the public and state legislatures to provide effective curriculum materials and assistance to students with disabilities, have begun to demand that textbooks and other curriculum materials be provided in accessible digital formats. Major adoption states (CA, TX, GA, KY) have started requiring publishers to provide these materials, and other states are expected to quickly follow suit. In an effort to standardize this process, federal legislation (The Instructional Materials Accessibility Act or IMAA) is moving through Congress in a joint effort by advocacy groups for the visually-impaired and the Association of American Publishers. If enacted in its current form, IMAA will create a national repository for digital textbooks and require publishers to contribute their titles in flexible digital format.

These legal developments have initiated many adjustments for K–12 publishers. Although a few of the major publishing houses have useable digital versions of their titles, the majority of these editions do not meet accessibility standards. Similarly, the stripped-down ASCII text required for Braille in more than half the states also does not meet the new federal stipulations. For supplemental publishers, the creation of these accessible digital versions may well be outside the scope of their available resources.

Understandably, K–12 publishers have restricted budgets and do not wish to incur additional costs to produce and service digital versions of print titles which are well into their multi-year life cycles. Yet all students today, even those who cannot access standard print materials, must participate in and pass high-stakes tests. Schools scramble to scan and use publishers' textbooks as best they can, but this can be a costly effort that inevitably takes teachers away from teaching many of their students while they attend to the needs of a few. Thus, schools are increasingly interested in seeing publishers provide digital versions of the texts their teachers use.

In addition to meeting the accessibility needs of students with disabilities, the creative potential for accessible digital materials is as limitless as the imagination of the product design team. In the future, accessible digital products could be used to make learning more exciting, interactive and individually-tailored to the needs, learning style and interests of all students. Obviously, a major shift toward the more widespread use of accessible digital products in the classroom will take considerable time for a variety of reasons. However, the aforementioned legal developments at the federal and state level suggest that soon, educators and content providers will need to gear up quickly to prepare truly accessible digital versions of their products.

It is for these reasons that publishers, lawyers, and technology specialists need to spend time discussing the barriers which exist today in the field of accessible curriculum materials, and creatively envisioning solutions that will meet the needs of students, educators and publishers.

Cite this paper as follows:

Stahl, S. (2002). A discussion of accessible curriculum materials. Wakefield, MA: National Center on Accessing the General Curriculum. Retrieved [insert date] from http://aim.cast.org/learn/historyarchive/backgroundpapers/policy_property_permissions1

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Report One: AAP's Perspective on Accessible Curriculum Materials for K–12 Classrooms

by Allan Adler [6]

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 "e-books") 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, post-secondary 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 consti-tuencies, 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.

Cite this paper as follows:

Adler, A. (2002). AAP’s Perspective on Accessible Curriculum Materials for K–12 Classrooms. Wakefield, MA: National Center on Accessing the General Curriculum. Retrieved [insert date] from http://aim.cast.org/learn/historyarchive/backgroundpapers/policy_property_permissions1

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Report Two: Content Distribution and Digital Rights Management (DRM)

[7]

by Mark Aronica[8] and Erica S. Perl[9]

Where are we now?

During the past decade, distinct changes of technology, social infrastructure, and the market have occurred. Consequently, textbook publishers are trying to respond to these changes and to reexamine their traditional business model. However, at the same time, new distribution challenges, security vulnerabilities, and market expectations are converging on the publishing industry. Publishers are quickly realizing the inherent difficulties in responding to these innovations while attempting to maintain and manage the property rights in the content that is being distributed.

Protecting the intellectual property rights of digital assets can feel futile. Although legal and policy mechanisms have been established and technical deterrents are in place, they are constantly circumvented. To make matters worse, it is expensive to build these digital locks, but cheap to pick them. And once the lock is picked, it is easy to duplicate the key and make it available to others. Thus, it can be extremely difficult to act as a gatekeeper.

Perhaps the reason for this problem is that there are only a limited number of organizations interested in developing mechanisms for protecting digital content, but a seemingly endless number of individuals bent on circumventing these protections. Although they are not well-organized as a group, individuals who are interested and skilled in breaking digital security mechanisms view it as their duty to demonstrate the weaknesses of the security measures. If a security mechanism withstands early assault, the hacking community often responds in ways that suggest it believes its reputation is at stake. It then continues its attack until it succeeds.

The attitude of entitlement to information, goods and services (including copyrighted material) is not limited to the hacking community. It is now pervasive among many Internet users.[10] For example, look no further than the massive appeal of the now-defunct Napster service and the volume of current users on similar services. The anonymity provided by the Internet and the common perception that distributing protected materials is a victimless crime also encourage this phenomenon. Initially, internet users developed the interest in getting as much "free stuff" as possible, and hackers made use of the tools necessary to guarantee access, but a barrier remained: there was no method to facilitate widespread distribution. However, this problem was quickly solved, and then perfected as numerous peer-to-peer networks emerged. This was represented through networks such as Napster and more recently Gnutella, leading to a paradigm shift in the area of information distribution. Once these networks were established, the line between distributor and consumer was blurred.

Peer-to-peer type networks like Napster eliminate the role of the central distribution point by making every user a potential contributor to one massive, yet distributed, warehouse of digital materials. By eliminating the centralized processing of search and distribution functionality, these networks eliminated the single point of control and hence eliminated a clear target for legal action. This is to say that every user of the network becomes equally complicit in the illegal behavior of distributing protected materials. Furthermore, peer-to-peer technology also enables every participant to be both a consumer and distributor with a potential audience of millions of other users globally.

Behavior that was once perpetrated by only a few is now being practiced daily by the general population of Internet users and could be considered now part of the ritual of commerce in our society. To not acknowledge this practice when surveying the consumer landscape is to ignore a key aspect of the future of information interchange. It is within this landscape that publishers must now try to protect the rights of the content producers without limiting access to the materials that the purchasing population has come to expect. One recently introduced federal bill has taken the innovative step of proposing that copyright holders be insulated from liability for digitally blocking the unauthorized distribution of their protected works. [11]

It is not clear if the proliferation of disparate file formats and applications is due to the nascent market and the evolutionary stage of its associated technologies, or if it is because of true market competition. One would have to assume a bit of both. However, development of proprietary technologies usually means additional costs to the producer. Therefore, if a standard were to emerge that supported the mutual needs of all sides—the producers, the software and hardware manufactures, and the consumers—then there is certainly an increased opportunity for greater innovation, benefiting the consumer and lowering cost for developers. A format that would meet all these requirements would need to support the digital rights management (DRM) needs of the publishers, the accessibility hooks required by the product manufactures, and ease of use by the consumer.

The current fractured state of the industry has produced results that rarely meet the needs of all three constituents. Either assistive technology (AT) products must interface with non-DRM protected content, or DRM protected content only allows for limited AT features. The loser in this current environment is the consumer due to the lack of access to popular titles and core educational materials.

What challenges exist?

A key technical challenge going forward will be finding the right balance between providing content in a format that protects the copyright holder, while at the same time allowing it to be processed by third-party AT applications, such as screen readers. Unless AT applications can gain access to the text, the content is inaccessible and the AT applications are unable to perform their intended services. The recent article, The Soundproof Book[12] , described how unsuspecting screen reader users can find themselves in such a predicament.

Assistive Technology applications can generally gain access to text in one of two ways. Sometimes, the text is provided in a recognized format that allows the AT application to directly open up the text file (the "one-step" approach). If this does not work, the user may be able to use a desk-top application, such as a web browser or word processor, to display text in such a way that the AT application can then retrieve the content (the "two step" approach). In the latter example, the AT application takes a parasitic approach by attaching on top of the desktop application in order to extract the text. Both approaches are common in AT applications, but both present problems for those who seek to maintain security over copyrighted material.

The problem with the "one-step" approach is that of the file formats that can be read by AT applications, there are not yet any that are both widely accepted and secure (and, thus non-viewable by other desktop applications). Thus, most copyright-protected materials intended for use only by AT applications can also be opened and read by anyone with a standard suite of desktop applications.

The only companies that support a secure approach are those that both define a proprietary secure file format and supply the corresponding viewer application. For example, Adobe and Microsoft provide both closed file formats (PDF and LIT) and viewer applications (Acrobat and Reader). Furthermore, both of these applications also supply a set of functionality that could be considered beneficial to individuals with disabilities. However, certain accessibility features (including text-to-speech) are shut off in these applications if the document being viewed is encoded to the highest level of digital rights management (DRM) protection. One can assume it is this level that will become the default DRM encoding selection set by most providers concerned with securing their content. Content providers might presumably make this encoding selection without ever understanding the barriers created as a result.

The other way in which an AT application can gain access to text is to attach on top of a desktop application. For example, a screen reader can process content that is displayed in a web browser. This works because the screen reader is able to select the text in the web browser window and paste it into its internal memory for processing. However, from a security standpoint, there is a problem. The browser isn't able to easily distinguish between an approved AT application and one that is attempting to pirate the content. The browser is therefore unable to decide when it is appropriate to limit access. Therefore, any user is then able to copy-and-paste the content into another application for subsequent distribution. Conversely, some desktop applications do not allow any application or person to select the text being displayed. This solves the security issue at the expensive of eliminating accessibility.

More recently, Microsoft has released an accessibility programming layer called Active Accessibility that programmers can use to establish a trusted relationship between desktop applications and AT applications. Although the layer wasn't originally targeted at solving the information security issues discussed, it does allow for a more discrete method of passing text to AT applications. However, the Active Accessibility layer isn't cross-platform and only works in a Windows-based environment. This causes problems for the field of education with its high percentage of Macintosh users.

It seems unrealistic that a single application could ever be developed that would create a closed environment to protect the security of the content while also supplying all the functionality currently delivered through third-party AT applications. However, a specialized secure format, named DAISY-NISO, is being developed specifically for individuals with print disabilities. If widely adopted, this format or another like it might help to serve a large percentage of those needing digital text while still satisfying publishers' interest in maintaining a high degree of security. Unfortunately, access to the much broader selection of non-specialized materials currently available to the general population would still be unattainable.

Cite this paper as follows:

Aronica, M., & Perl, E. S. (2002). Content distribution and Digital Rights Management (DRM). Wakefield, MA: National Center on Accessing the General Curriculum. Retrieved [insert date] from http://aim.cast.org/learn/historyarchive/backgroundpapers/policy_property_permissions1

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A Report Three: Federal and State Legislation Regarding Accessible Instructional Materials

[13]

by Erica S. Perl[14]

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."[15] 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.[16] 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 dictated by the Chafee Amendment requires that authorized entities screen recipients and provide access to their collections for 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.[17] 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.[18]

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.[19] 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."[20] 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.[21]

IDEA

The Individuals with Disabilities Education Act (IDEA)[22] 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.[23] 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.[24]

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.[25]

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.[26]

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.[27] 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.[28]

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. Because the digital materials will be created under a unified standard and format, they will be of a consistent, high quality. 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.[29] In addition, states will receive funding develop their capacities to acquire and transform digital curriculum materials, which should help create a systemic approach to providing accommodations for diverse learners.

The IMAA is currently being reviewed due to concerns raised regarding several of its specific previsions. For example, the provision stating that that IMAA will govern in an instance of conflict with a state law has been the subject of scrutiny. Many advocates for disabled students hope that that this and other issues will be resolved soon so that students in need can begin to realize the law's many benefits.

Recently Enacted and Other Pending Federal Legislation

On November 2, 2002 a bill called the Technology Harmonization and Education Act or "TEACH" became enacted as a law. This law expands the exception under the Copyright Act of 1976 that allows colleges and schools[30] to use copyrighted material for instruction without securing copyright holders' permission. The exception has been broadened to allow distance-education providers to digitally transmit non-dramatic literary and musical works. Under the law, these educators can now show their students selected portions of movies, plays and other dramatic works without securing specific permission for these uses.

There is also a bill currently pending in the United States House of Representatives [31] (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…"[32] This bill, if enacted, could conceivably impact the growth and development of peer-to-peer educational networks.[33]

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.[34] Their provisions range considerably. For purposes of comparison, here is a survey of six of them: [35]

Georgia has two pieces of legislation under consideration:

1) Georgia 02 HB 1342[36] 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[37] 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[38] 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.[39] 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.[40]

New York: 2001 Bill Text NY A.B. 7926[41] 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[42] 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[43] 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.[44]

Minnesota: Minnesota has enacted a set of far-reaching "Section 508" compliance statutes that impact electronic instructional materials.[45] Although the state notes that it is not clear whether the Section 508 standards apply to all State agencies, the State concludes that "even without Section 508 there is sufficient legal basis to require that our web sites be accessible." Consequently, the State requires that any officially sponsored college or university Web page or site make efforts to become accessible "as soon as possible." This rule applies to all primary college and university web sites, department sites, and online instructional materials.

North Carolina: The Federal Office for Civil Rights (OCR) reached a settlement with the state of North Carolina this year in a case involving Section 504 and ADA complaints regarding timely provision of Braille and other alternative format textbooks. The State agreed to take several steps to improve this process so students would receive modified materials faster. In addition, the State agreed to "seek etext versions" from publishers, "track" the national legislation (IMAA) for compliance, and design and implement a quality assurance program for modified textbooks.[46]

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."[47] 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.[48] 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.[49] 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.[50] Supporters of the DMCA maintain that the DMCA is necessary to allow copyright holders to protect their work from theft and unauthorized alteration.[51] 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

State
Textbook Procurement Preference for Publishers with Alternative Formats
Publisher Requirement of Alternative Format
Extra Money for Instruction
Clearing-House
GeorgiaSeemingly NoSeemingly No.[52]Yes. (Extra money for disabled students to be allotted as district sees fit).In Development. Statute requires working towards clearing-house for post-secondary, vocational, technical and adult education colleges and universities.
KentuckyYes. Preference for publishers with alternative formats.Yes. "To the extent feasible" publishers must provide electronic versions.YesLimited (American Printing House for the Blind and Recording for the Blind and Dyslexic).
CaliforniaYes. Electronic version requirement requires publishers to create alternative formats.Yes. Publishers must produce electronic versions within 30 days of request.Yes. They even provide funding for aides to learn how to instruct Braille.Yes. Publishers must maintain a depository in state.
New YorkYes and each BOE must prepare a plan to ensure that students receive texts in a timely fashion.Seemingly No.Yes. NY CLS §3602 (19) provides for extra apportionment for handicapped students.Limited (There is a center for Braille and large-print books, but not all alternative formats).
TexasNo, but electronic version requirement (next column) almost requires publishers to create alternative formats.Yes. Electronic versions must be available upon request, but statutes focus on the blind.Yes. The Office for the Education of Special Populations receives extra funding.Limited. Central Media Depository created for visually impaired students. Another statute calls for interstate coordination of texts as well.
MarylandYes. Schools are responsible for providing alternative instruction.Yes. Electronic versions must be produced upon request.Yes.In Development. Statute requires development of policy for coordinating textbook distribution.



Cite this paper as follows:

Perl, E. S. (2002). Federal and state legislation regarding accessible instructional materials. Wakefield, MA: National Center on Accessing the General Curriculum. Retrieved [insert date] from http://aim.cast.org/learn/historyarchive/backgroundpapers/policy_property_permissions1

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Footnotes

1. The National Center on Accessing the General Curriculum (NCAC), a co-sponsor of this discussion, is funded by the Office of Special Education Programs (OSEP) in the U.S. Department of Education. However, the opinions expressed in these source documents do not necessarily reflect the position or policy of the U.S. Department of Education or the Office of Special Education Programs and no endorsement by that office should be inferred.

2. Co-Director, Universal Learning Center (ULC); Center for Applied Special Technology (CAST)

3. "The new emphasis on participation in the general education curriculum…is intended to produce attention to the accommodations and adjustments necessary for disabled children to access the general education curriculum and the special services which may be necessary for appropriate participation in particular areas of the curriculum…" (U.S. Senate, 1997, p. 17).

4. "Current textbook materials and teaching practices typically fail to effectively provide support that can be individualized for students who need help…" Research Connections in Special Education, Number 5, Fall 1999, Universal Design; The ERIC/OSEP Special Project, Council for Exceptional Children. Online at: http://ericec.org/osep/recon5/rc5sec2.html

5. A Curriculum Every Student Can Use: Design Principles for Student Access. ERIC/OSEP Topical Brief, by Raymond Orkwis and Kathleen McLane, 1998, Non-classroom Material (055); Eric Product (071); ERIC Identifier: ED423654; Available from: ERIC/OSEP Special Project, The ERIC Clearinghouse on
Disabilities and Gifted Education, The Council for Exceptional Children, 1920 Association Drive, Reston, VA 20191-1589; Tel/TTY: 800-328-0272 (Toll-Free); Fax: 703- 620-2521; e-mail: ericec [at] cec [dot] sped [dot] org; Web site: http://www.cec.sped.org/ericec.htm; Rose, D. and Meyer, A., The future in the margins: The role of technology and disability in educational reform. [Online]. Retrieved March 5, 2001: http://www.cast.org/publications/index.html

6. Vice President for Legal & Governmental Affairs, Association of American Publishers (AAP)

7. This report was completed on August 13, 2002.

8. Senior Director of Systems Development, Center for Applied Special Technology (CAST)

9. Research Attorney, Harvard Children's Initiative (HCI); Managing Director, National Center for Accessing the General Curriculum (NCAC) Policy Group

10. Despite the fact that so many internet users thrive on free information, Charles Cooper points out in a recent online commentary that the number of free content providers is quickly diminishing as sites like Salon.com and TheStreet.com try to keep their bills paid. See The Free Ride is over—Thank Goodness, ZDnet.com, August 9, 2002; http://zdnet.com.com/2102-1107-949089.html

11. See Federal and State Legislation Regarding Accessible Materials, by Erica S. Perl, 9/12/02 (companion report to this document, also posted on "Policy, Property and Permissions: A Discussion of Accessible Curriculum Materials" web site).

12. http://www.firstmonday.org/issues/issue7_6/kerscher/index.html

13. This report was completed on September 12, 2002.

14. Research Attorney, Harvard Children's Initiative (HCI); Managing Director, National Center for Accessing the General Curriculum (NCAC) Policy Group.

15. The text of the Act reads:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there is hereby authorized to be appropriated annually to the Library of Congress, in addition to appropriations otherwise made to said Library, the sum of $100,000, which sum shall be expended under the direction of the Librarian of Congress to provide books for the use of the adult blind residents of the United States, including the several States, Territories, insular possessions, and the District of Columbia. Sec. 2. The Librarian of Congress may arrange with such libraries as he may judge appropriate to serve as local or regional centers for the circulation of such books, under such conditions and regulations as he may prescribe. In the lending of such books preference shall at all times be given to the needs of blind persons who have been honorably discharged from the United States military or naval service. Approved, March 3, 1931. Chap. 400. Sec. 1, 46 Stat. 1487, 71st Congress

16. Section 121 provides, in relevant part, as follows:

  • 121. Limitations on exclusive rights: reproduction for blind or other people with disabilities

  • (a) Notwithstanding the provisions of sections 106 and 710, it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.

  • (b)(1) Copies or phonorecords to which this section applies shall --
    • (A) not be reproduced or distributed in a format other than a specialized format exclusively for use by blind or other persons with disabilities.
  • (c) For purposes of this section, the term --
    • (1) "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;
    • (2) "blind or other persons with disabilities" means individuals who are eligible or who may qualify in accordance with the Act entitled "An Act to provide books for the adult blind", approved March 3, 1931 (2 U.S.C. 135a; 46 Stat. 1487) to receive books and other publications produced in specialized formats; and
    • (3) "specialized formats" means braille, audio, or digital text which is
      exclusively for the blind or other persons with disabilities.

17. Section 504 provides, in relevant part, as follows:

  • No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance …

18. The Americans with Disabilities Act (ADA) is another applicable anti-discrimination statute. The ADA specifically prohibits discrimination by educational institutions on the basis of disability. Title II of the ADA requires that all State and local governments (and their public educational facilities) give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities. Private educational facilities are also covered under the ADA (Title III - Public Accommodations) and must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment.

19. 34 C.F.R. § 104.4(b)(1).

20. Id. § 104.4(b)(2).

21. See e.g. Sabo v. O'Bannon, 586 F. Supp. 1132 (E.D. Pa. 1984); Southeastern Community College v. Davis, 442 U.S. 397 (1979).

22. IDEA was originally called P.L. 94-142 or the Education for all Handicapped Children Act of 1975.

23. IDEA also mandates that particular procedures be followed in the development of the IEP. Each student's IEP must be developed by a team of knowledgeable persons and must be at least reviewed annually. The team includes the child's teacher; the parents, subject to certain limited exceptions; the child, if determined appropriate; an agency representative who is qualified to provide or supervise the provision of special education; and other individuals at the parents' or agency's discretion. If parents disagree with the proposed IEP, they can request a due process hearing and a review from the State educational agency if applicable in that state. They also can appeal the State agency's decision to State or Federal court.

24. For further comparisons of Section 504 and IDEA, see "Section 504 and IDEA: Basic Similarities and Differences," by S. James Rosenfeld; available at http://www.ldonline.org/ld_indepth/legal_legislative/edlaw504.html

25. Some individuals with disabilities may need accessibility-related software or peripheral devices in order to use systems that comply with Section 508.

26. New versions of OCR software (OmniPage Pro 11 from ScanSoft.com, for example) claim increasing accuracy and digitizing that can retain the page layout (including graphics) while translating files from and to formats such as PDF, WORD, and RTF. While this new functionality helps to increase the speed of the process, digitizing a textbook is still a non-trivial task that requires considerable oversight and human intervention in order to guarantee a result that can be effectively used in a classroom.

27. H.R. 4582 and S. 2246.

28. In addition to the $1 million to develop the center, $5 million would be available for the first few years to help states pay for the technology needed to make use of the electronic files.

29. http://www.afb.org/info_document_view.asp?DocumentID=1705

30. The legislation applies only to accredited, nonprofit educational institutions.

31. On 8/20/2002 the bill, H.R. 5211, was referred to House subcommittees on Courts, the Internet, and Intellectual Property.

32. For the complete text of this bill, go to: http://thomas.loc.gov/cgi-bin/query/z?c107:H.R.5211:

33. On August 20, 2002 this bill was referred to House subcommittee.

34. Most, although not all, states already have laws pertaining to materials for blind and visually impaired students. A state-by-state list of laws on accessible materials for the blind and visually impaired is available at: http://www.afb.org/info_document_view.asp?documentid=360

35. This research was conducted in June, 2002. It is possible that the status and/or text of some of these laws has been altered since then. A chart summarizing the provisions of the states surveyed in this section is attached to this report as exhibit "A."

36. The statute is available at:
http://www2.state.ga.us/Legis/2001_02/fulltext/hb1342.htm

37. The statute is available at: http://www2.state.ga.us/Legis/2001_02/fulltext/hb228.htm

38. A summary of the Kentucky statute is available at http://www.lrc.state.ky.us/record/02rs/SB243.htm and the full text is available at http://www.lrc.state.ky.us/record/02rs/SB243/bill.doc

39. CA AB 804. For more information, go to: http://www.cde.ca.gov/spbranch/sed/lawsreg2.htm

40. 2002 K-8 Reading / Language Arts / English Language Development Adoption Criteria, available from CA Department of Education, Curriculum Frameworks and Instructional Resources Office, (916) 657-3023

41. The New York statute is available for those with LEXIS access at http://www.lexis.com/research/retrieve/frames?_m=2afbbacb985a182437c4248ca9990e5b&csvc=le&cform=byCitation&_fmtstr=CITE&docnum=1&_startdoc=1&wchp=dGLbVlb-lSlbz&_md5=248d7eed6a63bdec0804c5e344aa14db

42. The Texas statute is available for those with LEXIS access at http://www.lexis.com/research/retrieve/frames?_m=c0dcbb03e01cd02045749602d1a5fb59&csvc=bl&cform=bool&_fmtstr=XCITE&docnum=1&_startdoc=1&wchp=dGLbVlb-lSlbz&_md5=0facb2997b1055c28c684921c087640d

43. The Maryland statute is available for those with LEXIS access at http://www.lexis.com/research/retrieve/frames?_m=5f601088a8daea7e69b5228090fb4708&csvc=bl&cform=bool&_fmtstr=XCITE&docnum=1&_startdoc=1&wchp=dGLbVlb-lSlbz&_md5=da9a89d2c93462987279421e0c2a52fc

44. In addition, Maryland has a statute that requires all computer-based instructional material (including digital textbooks) to be Section 508 compliant. For a summary, see http://www.mdtap.org/content/accesslaw.html

45. See: http://www.its.mnscu.edu/webmaster/access/

46. See Thompson Publishing Group's Section 504 Compliance Handbook, Supplement No. 281 (April 2002), available from TPG, 1725 K St. NW, Suite 700, Washington, DC 20006

47. If the non-profit organization in question is a public school, the best approach might be to establish a distinct program within the school that specifically addresses the needs of print-disabled learners.

48. Electronic Frontier Foundation (EFF) Whitepaper, Unintended Consequences - Three Years Under the DMCA; available at: http://www.eff.org/IP/DMCA/20020503_dmca_consequences.html

49. Annotated Summary of the DMCA by David C. Niemi, available at: http://www.tuxers.net/dmca/dmca-notes.txt

50. Id.; see also von Lohmann, Fred, Fair Use and Digital Rights Management: Preliminary Thoughts on the (Irreconcilable) Tension between Them; available at: http://www.eff.org/IP/DRM/fair_use_and_drm.html
51. As the Copyright Committee of the Association of American Publishers (AAP) states: "Fair use, as a judicially-created principle of equity subsequently codified in Section 107 of the Copyright Act, does not give anyone a right to have access to a copyrighted work; nor does it create any obligation on the part of a copyright holder to facilitate reproduction or distribution of a lawfully-acquired copy of a copyrighted work. Properly understood as embodying a limited, circumstantial privilege to engage in certain otherwise infringing conduct without the permission of the copyright holder, the "fair use" doctrine is not compromised by the use of technological measures and is not in conflict with [the DMCA's] mandate to prohibit the circumvention of technological measures." See AAP Copyright Committee Position Paper on Contractual Licensing, Technological Measures, and Copyright Law; available at: http://www.publishers.org/abouta/copy/licensing.htm

52. The phrase "seemingly no" indicates that after extensive searching, we could find no law requiring that provision.

This content was developed pursuant to cooperative agreement #H324H990004 under CFDA 84.324H between CAST and the Office of Special Education Programs, U.S. Department of Education. However, the opinions expressed herein do not necessarily reflect the position or policy of the U.S. Department of Education or the Office of Special Education Programs and no endorsement by that office should be inferred.

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Last Updated: 10/22/2013

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