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Delaware Assistive Technology Initiative

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Volume 15, No. 2, Spring 2007

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Print Access Vs. Copyright Law: A Legal Expert Weighs In

Beth Mineo
DATI Director

Sometimes schools will say that they are precluded from providing text alternatives to students with print disabilities because they are concerned about violating copyright law. Several months ago, I asked Ron Hager, Staff Attorney with the National Assistive Technology Advocacy Project (a project of Neighborhood Legal Services, Inc. in Buffalo, New York), to weigh in on this issue. Here is his response:

Pursuant to the Individuals with Disabilities Improvement Act of 2004 (IDEA 04), States are required to ensure that "blind persons or persons with print disabilities" receive instructional materials in accessible formats in a timely manner. 20 U.S.C. § 1412(a)(23). IDEA 04 does not define the phrase, "blind persons or other persons with print disabilities." However, the "Act to provide books for the adult blind," 2 U.S.C. § 135a, does. The final 2006 regulations implementing IDEA 04 make it clear that the definition from 2 U.S.C. §135a applies to the IDEA 04 requirement. 34 C.F.R. § 300.172(e)(1)(I).

IDEA 04 also amends a provision of the Federal Copyright Law which provides an exception to the Copyright provisions, by adding a section that specifies that it is not a violation of Copyright Law to comply with the above-referenced provision of IDEA 04 for "blind or other persons with disabilities." IDEA 04, Title III, Section 306. At first read, this sounds like a broader exception under the Copyright Law than is contained in 2 U.S.C. § 135a. However, the Copyright Law provisions that were not amended by IDEA 04 already defined "blind or other persons with disabilities" as those who are eligible under 2 U.S.C. § 135a, "blind persons or other persons with print disabilities." 17 U.S.C. §121(d)(2).

Assuming that all students with disabilities who need instructional materials in alternate formats meet this definition there would be no problem, because every student needing an alternate format would also fall within the exception under the Copyright Law. The problem arises because the final special education regulations explicitly state that even if students are not "blind or other persons with print disabilities," they are still entitled to instructional materials in alternate formats if they need them. 34 C.F.R. § 300.172(b). The potential problem for States or school districts that provide alternate instructional materials to this group of students (if there are any in this category) is that they are not explicitly covered by the Copyright exception.

Possible Resolution

1. Fit the student within the definition of "blind or other person with print disabilities."
The regulations defining this term include:
(1) blind persons; (2) persons whose visual disability, with correction, "prevents the reading of standard print material;" (3) persons "unable to read or unable to use standard printed materials as a result of physical limitations" (some persons with cerebral palsy, for example, may fit into this category); and (4) "persons certified by a competent authority as having a reading disability resulting from organic dysfunction and of sufficient severity to prevent their reading printed materials in a normal manner." 36 C.F.R. §701.6(b)(1). I believe virtually any student needing an alternative format should be able to fit within this category, especially as we increasingly find organic components to disabilities. If it is not organic, then what causes a learning disability or ADD/ADHD? It is not emotional. To emphasize this point, OSEP refused to remove the term "minimal brain dysfunction" from the definition of learning disability. 71 FR 46551. The comments to the final regulations even indicate that "bipolar disorders and other neurologic disorders" fit within the definition of other health impaired. 71 FR 46550.

All four categories listed above require that a person's eligibility be certified by "competent authority." For our purposes, "competent authority" for this fourth category is defined as "doctors of medicine who may consult with colleagues in associated disciplines." 36 C.F.R. § 701.6(b)(2)(ii). Under the definition of related services, physicians are permitted to do evaluations to "determine a child's medically related disability that results in the child's need for special education and related services.” 34 C.F.R. § 300.34(c)(5). The determination of whether or not a child has an organic condition that requires alternate instructional materials would seem to me to meet this definition. Therefore, as part of the evaluation of a student, a physician could assess a student with reading difficulties, which could include a review of other evaluations, and, where appropriate, "certify" the student. In such a case, the district would be protected by the Copyright exception. It would also be easier for the district to provide the materials to the student, as it could now utilize the NIMAC [the National Instructional Materials Accessibility Center], which would also provide better protections for the student.

2. Fair Use Exception
Another possible protection for schools from Copyright concerns is the "fair use" exception also written into the Copyright Law. 17 U.S.C. § 107. There is a very interesting case which I believe would provide excellent (but not perfect) precedent for a district which provided instructional materials in an alternate format to a student with a disability as determined necessary by the IEP Team (this could very well apply in Section 504 cases as well). Newport-Mesa Unified School District v. State of California Department of Education, 371 F.Supp.2d 1170 (C.D.Cal. 2005).

The case arose because California law requires that parents of special education students be provided with a copy of the test protocol used for the student, which is copyrighted material. A school district brought the case for a declaration of its rights in relation to the Copyright Law. The district felt that it was faced with the problem of either violating a provision of California special education law or a provision of Federal Copyright Law (sound familiar?). The court found that providing the parents with a copy of the copyrighted test protocol, even if it amounted to the entire text of the copyrighted material, did not violate the Copyright Law. The court found that it fit within the fair use exception. I believe this same analysis would apply to districts providing instructional materials in alternate formats to students with disabilities in order to meet their obligations under State and Federal special education laws.

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A big “thank you” to Ron for his insightful analysis of this complex issue!

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