The Association of Research Libraries (ARL) is pleased to submit these comments to the US Department of Education Office for Civil Rights, in consideration of its process to propose amendments to 34 C.F.R. pt. 104, implementing Section 504 of the Rehabilitation Act of 1973.
The Association on Higher Education and Disability (AHEAD) supports these comments in addressing a unique and important area of concern that is not likely to be addressed by others.
Along with the Americans with Disabilities Act (ADA) and Section 508 of the Rehabilitation Act, Section 504 is a key piece of the US federal policy framework preventing discrimination against people with disabilities in public accommodations, services, employment, and education.
Fifty years ago when the Section 504 regulations were issued, offering “accessibility” meant making a Braille copy of an analog book. Now that the majority of works acquired and licensed by universities and research institutions are born digital, the works are typically inherently more compatible with assistive technology. And in all events, it is far more efficient for the publisher to make accessibility improvements to the digital version than for an institution to convert an analog copy into an accessible digital copy, or to unlock a digital copy and convert it to a more accessible format.
Universities and other research institutions administer or procure myriad digital platforms, and license enormous amounts of digital content for students and scholars, all of which must be accessible in order to provide an equitable learning and research experience for people with disabilities. Under current disability laws, the responsibility of ensuring platform and content accessibility falls solely on the procuring organization, and not the vendors or publishers. For example, if an instructor selects course material that is inaccessible, universities may be obligated to remediate the content for students who need it; the school, not the content provider, would be held liable if the remediation did not occur.
Institutions of higher education and libraries rely on sometimes inadequate copyright limitations and exceptions, including to reformat inaccessible content, or circumvent technical protection measures. But mere reliance on these exceptions—even where they are sufficient—does not resolve the bigger problem of burden: the onus placed on the university or library to remediate the shortcomings of the content they have spent so much money on acquiring. Therefore, as the US Department of Education considers amendments to Section 504 of the Rehabilitation Act of 1973, ARL urges the Department of Education to collaborate with the Copyright Office to facilitate better understanding of how both US copyright laws and disability laws may be improved to address the barriers discussed below, and to advance student success.
Research Libraries Prioritize Accessibility
Research libraries have institutional missions—and in many cases legal obligations—to make all collections and services accessible to their patrons. In prioritizing accessibility, many research libraries designate liaison librarians to provide or coordinate library support for users with disabilities, often in partnership with disability services offices. Some libraries offer standard training in accessibility service awareness to all staff. In partnership with disability rights organizations, research libraries advocate for regulations that allow users to circumvent digital rights management measures in order to access ebooks with screen readers and other assistive technologies. Research libraries have made significant investments in staffing, training, and equipment to respond to requests for accessible materials, which often involves scanning print materials and modifying digital files to meet the individual needs of each student. Once a remediated file is created, the institution must determine how to store and properly protect the files, many of which are under copyright.
US Copyright Laws Allows Third Parties to Create Accessible Works
Most scholarly materials used for teaching and learning are protected by copyright. This means that if the publisher does not make copies available in an accessible format copy, a library or a disability services office can make an accessible format copy for student use only to the extent permitted under limitations and exceptions to the Copyright Act.
Section 121 of the US Copyright Act permits third parties that meet the definition of “authorized entities” to make accessible versions of copyrighted works available to people with print disabilities, without the rightsholders’ permission. The Second Circuit in Authors Guild v. HathiTrust affirmed that libraries may also rely on fair use, codified in Section 107 of the Copyright Act, to make accessible format copies for students with print disabilities. The reasoning of the HathiTrust court indicates that libraries could rely on fair use to make accessible format copies for students with other disabilities, e.g., hearing disabilities. While these exceptions are critical in ensuring that libraries can fulfill their missions and meet the constitutional purpose of copyright, they simply ensure that works can lawfully be made accessible and shared. They do not provide libraries with the resources or funds needed to convert materials into accessible formats.
The Digital Millennium Copyright Act creates an additional legal hurdle for libraries seeking to convert digital materials into formats accessible for people with disabilities. The DMCA prohibits users from circumventing the technological protection measures that publishers use to protect works under copyright. Libraries, however, must circumvent the digital locks in order to make accessible format copies. The library and disabilities communities have worked hard to secure exemptions from the DMCA’s prohibitions, but the exemptions are narrow.
A Power Asymmetry Benefits Publishers
Even where copyright law exceptions are sufficient to permit accessibility efforts by libraries, there are other substantial barriers to libraries being able to move forward with such efforts.
Ideally, libraries would be able to obtain accessible materials directly from the publishers rather than undertaking remediation efforts. Yet, libraries of all sizes experience considerable challenges when attempting to negotiate for accessible scholarly works. Voluntary, licensing-based solutions in which libraries ask publishers to deliver accessible features and universal design may be of limited effectiveness, and more so for smaller, less-resourced institutions. Even if a publisher agrees to supply a voluntary statement of accessibility standards, there are no legal (or financial) consequences if what the publisher reports in that statement is simply that their materials are not accessible. Libraries could try to withhold payment to publishers who fail to produce “compliant” materials or statements, but libraries need to provide the content to their students and researchers. Publishers are disincentivized from undertaking additional efforts at cost to themselves when they know that there is no alternative for libraries that need access to the content.
If libraries cannot secure accessible content directly from the publishers, they once again are disadvantaged in subsequent efforts to remediate the materials. Virtually no library has the staffing, secure storage, or other resources to remediate works in large volumes, much less in a timely manner; this timeliness is especially critical for required course materials, and directly impacts student success.
Due to this power asymmetry, and the lack of responsibility placed on publishers by disability law, publishers may be slow to respond to library requests for accessible works—or may not respond at all. Challenges remain even in situations where publishers make accessible formats available. Some publishers place constraints or misleading warnings on accessible texts provided to campus disability services officers, which can lead to campus staff requesting permission when it is not legally required. Publishers may even require proof of payment for a work before supplying an accessible version. Some publishers do not utilize the accessibility standards that exist for digital content format, creating a technical roadblock for libraries to provide accessible versions of works that are not properly encoded for accessibility from the start. And if publishers do offer accessible versions of e-books, they may license them only to readers and not to libraries.
According to Blake Reid, director of the Samuelson-Glushko Technology Law & Policy Clinic (TLPC) and author of the California Law Review article “Copyright and Disability,” “vesting responsibility exclusively in third parties to make the works they distribute accessible can result in technical and economic inefficiencies that might be more easily overcome by the copyright holder.” Clearly, it would be far more efficient for a publisher to produce a book, for example, in an accessible format that could be used by all students with disabilities assigned to read the book, than for each institution in which the students are enrolled to convert analog or digitally locked materials into accessible formats.
Federally adopted standards and regulations are needed to address the power asymmetry discussed above, and support libraries in obtaining accessible materials directly from the publishers. This is precisely the framework applied in other countries. For instance, beginning in 2025, providers of e-books in the European Union must comply with accessibility requirements for people with print disabilities, including assurance that digital rights management measures do not block accessibility features. In this rulemaking, the US Department of Education may consider similar means of vesting responsibility for providing accessible materials with the publishers of scholarly works, who are able to add accessible features most effectively and efficiently.
The US Department of Education may also develop and adopt technological standards for the creation and inclusion of accessibility for copyrighted works, in consultation with institutions of higher education, libraries, publishers, and other stakeholders. Libraries and institutions of higher education (IHEs) could include representations of compliance with these standards in written contracts with publishers of digital scholarly materials, thereby requiring the publishers to prepare and deliver digital scholarly materials with appropriate accessibility features. Indeed, the US Department of Education has relied on similar approaches to accessibility for other materials. For instance, the US Department of Education adopted the National Instructional Materials Accessibility Standard in the Individuals with Disabilities Education Act as the preferred approach for publishers to provide accessible materials to K–12 students.
Of course, representations of publisher compliance with standards may hold little weight without financial consequence. The Department of Education could also consider developing a “strict liability” approach, essentially requiring publishers to indemnify libraries and institutions if the materials they sell the libraries do not, in fact, comply with legally mandated standards and compensating libraries for having to undertake remediation efforts (or pay lawsuit legal expenses) as a result of the publishers’ breaching their obligations and warranties.
To ensure that these recommendations are not implemented in a way that would restrict access to materials for teaching, learning, and research, the regulations may include exceptions for when publishers refuse to comply, or for situations in which it may be more appropriate or efficient for the library or IHE to remediate materials. The updated 504 regulations may include a notice by the US Department of Education notifying publishers of scholarly content of the obligation that IHEs have to provide accessible versions of materials to students with disabilities.
Finally, the US Department of Education should work with the Copyright Office on an ongoing basis to better understand how copyright and education policy may be improved to advance student success. This may include facilitating better awareness of the shortcomings in rightsholders’ efforts to make their own works accessible, when it would be more efficient for them to build in accessibility features like read aloud technology and captions to digital content to digital scholarly materials at the outset. The Department of Education may collaborate with the Copyright Office to provide guidance to entities covered under Section 504 on how to use copyright limitations and exceptions to provide accessible works.
ARL looks forward to opportunities to continue to engage in this rulemaking.
Mary Lee Kennedy
Association of Research Libraries
About the Association of Research Libraries
The Association of Research Libraries (ARL) is a nonprofit organization of 127 research libraries in Canada and the US whose mission is to advance research, learning, and scholarly communication. The Association fosters the open exchange of ideas and expertise; advances diversity, equity, and inclusion; and pursues advocacy and public policy efforts that reflect the values of the library, scholarly, and higher education communities. ARL forges partnerships and catalyzes the collective efforts of research libraries to enable knowledge creation and to achieve enduring and barrier-free access to information. ARL is on the web at ARL.org.