Demo of Alt Media Exchange System for Campuses by Campuses AIMHub Cheryl Pruitt cpruitt@calstate.edu Gaeir Dietrich gdietrich@htctu.net Jack Sullivan jsullivan@calstate.edu Cheryl

AIMHub and Copyright Legal Framework

Question of Access March 1996—Statewide review by Office for Civil Rights (OCR) of California community colleges (CCCs) Looked at print and computer accessibility needs of visually impaired students under Title II of the ADA and Section 504 of the Rehab Act

The Result January 1998—OCR asked the Chancellor’s Office to take steps to improve access Providing textbooks, instructional materials, and other printed information in alternate media such as braille, large print, or electronic text Provide materials in a timely and effective manner

Implementation Issues Timely delivery Accurate translation Providing materials in a manner and medium appropriate to the significance of the message and the abilities of the individual with the disability

Legal Issues There is no question that we must accommodate students’ needs... BUT...what about copyright?

Exceptions Written into the Copyright Act, Chapter 17 of the U.S. Code, as amended in 1987 “Fair use” – based on existing court doctrine now Section 107 of the Copyright Act Chafee Amendment, Section 121 of Copyright Act Technology, Education, and Copyright Harmonization Act (TEACH) of 2002: mediated instructional activities transmitted via digital networks Allows for digitization of videos for online classes

Chafee Amendment to the 1987 Copyright Act Section 121 of the Copyright Act “[I]t 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 [to a U.S. resident] if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.” 17 U.S.C. § 121(a)

Chafee Amendment Is For Individuals who are blind or visually impaired Other persons with physical impairments that prevent the reading of standard print Individuals with a reading disability based on a physical handicap

Limitations Chafee Amendment applies only to “authorized entity” Authorized entity = “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.”

Chafee Restrictions (A) not be reproduced or distributed in a format other than a specialized format exclusively for use by blind or other persons with disabilities; (B) bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement; and (C) include a copyright notice identifying the copyright owner and the date of the original publication.

Include on Media Specialized format for use by student with print disability. Any further reproduction or distribution of this material is an infringement of copyright law. Copyright 0000, Publisher name

Fair Use Is a defensive argument under the law Does not give specific direction of how works can or cannot be used Allows one to argue that the usage should be considered fair because…

“Fair Use”: Four Factors A fair use analysis requires the court to balance at least four factors set forth in the statute:  purpose and character of the use, nature of the copyrighted “work” [book, thesis, article, etc.], amount and substantiality of the portion used, and effect upon the market for the copyrighted work

Hathi Trust Case THE AUTHORS GUILD, INC. v. Hathi Trust, S.D. N.Y (2012) Five colleges that were part of Google’s “Mass Digitalization Program (MDP)” Hathi Trust argued fair use and Chafee

How It Works Google scans and digitizes the complete college/university library collection 73% of the items scanned are copyrighted, most are non-fiction; 10,000,000+ total Google gives 2 copies back to the library: scanned images (for preservation) and as text (for search and alternate media) Each institution then contributes 2 copies to the Hathi Trust’s digital library

Three Uses Full-text digital searches Preservation of printed material For works that are not in the public domain; and For works the copyright owner has not authorized use The full-text search indicates only The page numbers on which a particular term is found; and The number of times the term appears on each page Preservation of printed material Alternate media for individuals certified to have a “print disability”

Third Purpose Addresses a serious problem for blind students “Prior to the development of accessible digital books, the blind could access print materials only if the materials were converted to braille or if they were read by a human reader, either live or recorded.” Absent a program like the MDP, “print-disabled students accessed course materials through a university’s disability student services office and most universities are able to provide only reading [materials] … actually required [by the syllabus].”

Alt Format is Transformative Putting print disabled persons on the same footing as sighted individuals Not a significant market for publishers Access to them was NOT an intended use of the original work, the works were intended for the enjoyment of sighted persons “Making a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of fair use, with no suggestion that anything more than a purpose to entertain or to inform [is] needed to motivate the copying.”

Harm of Republication [“escaping”] on the Internet? Security procedures in place at the universities are strong Libraries must certify to trustworthiness The argument that this will hurt potential markets is “conjecture”

Judge Baer’s Holding on Fair Use “A copyright holder cannot preempt a transformative market …. Because I conclude that two of the uses are transformative – that is the provision of search capabilities and access for print – disabled individuals … does not cause the copyright holder to ‘suffer market harm’ due to the loss license fees.”

Holding on Fair Use (cont.) “The enhanced search capabilities that reveal no in-copyright material, the protection of Defendant’s fragile books, and perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by the Defendants as fair use to the extent that Plaintiffs have established a prima facie case of infringement.”

Judge Baer’s Conclusion: “This is the Essence of Fair Use” “I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendant’s MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.”

Fair Use Upheld Held non-profit, not commercial purposes No real likelihood of harm to the copyright holder Found to be transformative Found to be of educational value

University of Michigan (UM) is an “Authorized Entity” Judge Baer concludes UM digital library is an “authorized entity” Non-profit organization Or, governmental entity Primary mission to provide specialized services relating to Training or Education or Adaptive reading or Information access needs of blind and other persons with disabilities

“Fair Use” or “Authorized Entity” Either Way Works UM library meets this definition Other defendants may not but they “may certainly rely on fair use, as explained above … in the event they are not authorized entities [under Chafee]”

Summing up Dist. Ct. Opinion Digitizing books does not necessarily diminish or threaten the otherwise existing market for those books Americans with Disabilities Act affirmatively requires “equal access to copyrighted information.” Digitizing to create this access is a fair use under copyright law Programs in the nature of the MDP program at the University of Michigan satisfy both fair use and Chafee requirements.

Bottom Line for Us Book for disabled student Access required under federal and state laws Publishers will not sue a customer Student/campus owns book Ownership confers a lot of rights Due diligence Include copyright warning Make sure students know not to share

AIMHub Project

Campus Needs A tool to find and obtain existing accessible materials. A tool to track accessible media production. A tool to manage the accessible material files. A tool that provides detailed reporting. Gaeir

Accessible Material Lifecycle Request Acquisition Production Delivery Storage AIMHub focuses on … acquisition via campus exchange production tracking storage management Jack

AIMHub Diagram Jack

DEMO

9/12/2016 Moving Forward Developing nationwide subscription model to support future development and maintenance Promoting the desktop alternative media management tool Building larger selections of accessible materials from a broader user base subscription model will be developed that will make AIMHub available to post-secondary institutions outside California. We project that the AIMHub desktop tool will fulfill a unique need for alternate media specialists by allowing them to organize and prioritize student alternate media requests, track alternate media workflow, schedule alternate media delivery, and streamline all aspects of the conversion process. As the number of colleges and systems in the AIMHub grows, we predict that CSU and CCC funding support will be replaced by revenue from subscription sales to outside campuses and systems. The intention is to phase out monetary support by the CSU and CCC systems, which as the initial developers, will continue to utilize the system free of charge. We anticipate the revenue will increase until AIMHub will be fully supported for on-going maintenance and development.

What Can You Do Now? CAM and AMXDB members, verify contact information Non-members, sign up for AMXDB (gdietrich@htctu.net) Subscribe to the HTCTU alt-media listserv www.htctu.net  “HTCTU Listservers”  “Alt Media” Gaeir

Thank you Gaeir Dietrich 408-996-6047 gdietrich@htctu.net Cheryl Pruitt cpruitt@calstate.edu