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Copyright

Copyright information for the DCCC community.

Use of Copyright-Protected Works for Purposes of Accessibility

Fair Use mediates the rights of copyright holders and those of students to auxiliary aids for purposes of accessibility where

  • a protected work is adapted, or a derivative work produced (such as captioning or transcribing a video)
  • the adaptation or derivative is produced as an auxiliary aid to provide reasonable accommodation with respect to students' access to an educational experience or service
  • consideration of the adaptation or derivative in light of the four factors is otherwise favorable to Fair Use, including
    • original work is a lawful copy
    • no accessible version of the work is commercially available
    • use of the adaptation or derivative is restricted to students requesting accommodation and enrolled in the course for which the material is being used
    • use of the adaptation or derivative is limited in duration
  • the adaptation or derivative also complies with the TEACH Act, including
    • does not replace "material in any media,.. which are typically purchased or acquired by the students in higher education for their independent use"  (17 USC §110(2))
    • does not replace equivalent accessible material marketed for online learning
    • use of the material in the context of an instructor-directed learning experience is consistent with that of a face-to-face class.

Permission should be obtained for use of copyright-protected works in excess of Fair Use and the TEACH Act.

Rationale

DCCC strives to provide inclusive and accessible educational programs as regulated by the Americans with Disabilities Act of 1990 Title II (State and Local Governments) and Section 504 of the Rehabilitation Act of 1973.

These acts speak to the obligations of public colleges, and colleges receiving funds from the US Department of Education, in ensuring equitable access to education programs for students with disabilities.

US Department of Education enacts, and its Office for Civil Rights enforces, regulations under Section 504 for postsecondary institutions (34 CFR 104).  34 CFR 104.44 details Academic Adjustments required under the regulation, including auxiliary aids: "taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions."

US Department of Justice enacts, and US Department of Education enforces, regulations under Americans with Disabilities Act Title II for postsecondary institutions (28 CFR 35).  28 CFR 35.160 details accessible communications, including auxiliary aids and services.  The ADA Title II Technical Assistance Manual provides examples of auxiliary aids and services:

  • for individuals with hearing impairments: "qualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD's), videotext displays, and exchange of written notes"
  • for individuals with vision impairments: "qualified readers, taped texts, audio recordings, Brailled materials, large print materials, and assistance in locating items"
  • for individuals with speech impairments: "TDD's, computer terminals, speech synthesizers, and communication boards"

US Department of Education Office for Civil Rights synthesizes the responsibilities of postsecondary institutions under both Section 504 and ADA Title II in the guide, "Auxiliary Aids and Services for Postsecondary Students with Disabilities" (1998).

Copyright law also provides for the use of protected works for purposes of accessibility, including under 17 USC § 121 (the Chafee Amendment) and the Sixth Triennial Section 1201 Exemptions to provisions of the Digital Millennium Copyright Act (DMCA; 17 USC §1201), which allows the circumvention of technological measures of copyright protection (ex. DRM) for purposes of providing access to electronic literary works using assistive technology.

The Association of Research Libraries provides further guidance on the Chafee Amendment and Fair Use and on captioning under copyright law in light of equitable access to library resources and services.