Copyright Law Exceptions for Blind/Low Vision Individuals, Including Students

History of copyright protections

Copyright laws are a backbone of our nation. We borrowed them from England, where the oldest copyright is now more than 500 years old. Originally, copyright laws protected the publishers, not the authors, of written text. Copyright laws in the United states focus more on authors than on publishers; the United State Constitution empowers the U.S. Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Constitution Article I, Section 8, Clause 8.

Current U.S. copyright law: exceptions for individuals with print disabilities

In the U.S., copyright protections may be granted by Congress, but they may also be narrowed by Congress. With respect to individuals with print disabilities, Congress has passed several laws narrowing copyright protections for copyrighted materials distributed in the United States[1] or exported to[2] or imported from[3] countries party to the Marrakesh Treaty.[4]

Requirement for publishers to provide sources files for copyrighted print materials for U.S. K-12 students with print disabilities

For U.S. students with print disabilities in elementary and secondary school, Congress has done more than simply allow the reproduction of copyrighted print materials.[5] On December 3, 2004, the Individuals with Disabilities Education Improvement Act of 2004 became law. This legislation placed an affirmative duty upon states to, by December 3, 2006 (two years later),[6] either participate in NIMAC (National Instructional Materials Access Center) or develop its own system to “provide instructional materials to blind persons or other persons with print disabilities in a timely manner.”[7] This legislation actually requires states to include in every contract for the purchase of print materials a requirement that the publisher provide files needed to make these materials accessible for students with print disabilities.

Obtaining accessible curricular materials for K-12 students with print disabilities in the U.S.

Many times, schools, individual educators, or parents will approach the publisher of print curricular materials asking for these accessible files. Many times, that publisher will claim that it cannot produce “source files” needed to efficiently produce accessible curricular materials for students with print disabilities. It can be helpful to share with that publisher the U.S. copyright law that specifically states, “it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files.”[8] Thus, any publisher’s claim that it cannot provide these materials due to copyright restrictions is wholly without merit.

Nevertheless, it is important to understand that publishers are not required to provide these source files to individual students, parents, teachers, or even school districts. Instead, publishers must provide these files to state departments of education, so school districts should communicate with their state departments of education to obtain NIMAC files for eligible students.

Next steps

All U.S.[9] students with print disabilities should have full access to curricular materials from publishers through NIMAC.[10] Educators seeking access to source files (from which accessible materials may be made efficiently) should contact the NIMAC coordinator for their state. Parents or students wanting this access should ask an administrator at the school to contact your state’s NIMAC coordinator to obtain the file as quickly as possible.

Accessible materials are not limited to NIMAC files

Please note that U.S. students with print disabilities are entitled to accessible curricular materials regardless of whether those materials are available through NIMAC. In fact, the majority of needed curricular materials are likely created by teachers, and none of those are available through NIMAC. Thus, while NIMAC is a great source for publisher-produced curricular materials (like textbooks), U.S. students have the right to a free appropriate public education (FAPE), which includes the provision of ALL curricular materials be provided a format that provides the student “an equal opportunity to participate in, and enjoy the benefits of”[11] use of those curricular materials.

[1] 17 U.S.C. section 121.

[2] 17 U.S.C. section 121A(a).

[3] 17 U.S.C. section 121A(b).

[4] Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities concluded at Marrakesh, Morocco, on June 28, 2013. 17 U.S.C. section 121A(f)(2).

[5] “The term ‘print instructional materials’ means printed textbooks and related printed core materials that are written and published primarily for use in elementary school and secondary school instruction and are required by a State educational agency or local educational agency for use by students in the classroom.” 20 U.S.C. section 1474(e)(3)(C).

[6] 20 U.S.C. section 1412(a)(23)(C)

[7] 20 U.S.C. section 1412(a)(23)(B)

[8] 17 U.S.C. section 121(c).

[9] All fifty U.S. states as well as the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S Virgin Islands participate in NIMAC. Additionally, the Department of Defense Education Activity (DoDEA) participates has a NIMAC coordinator.

[10] National Instructional Materials Access Center

[11] 28 C.F.R. section 35.160(b)(1).