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Clarifying Copyright: Understanding The Legal Landscape

2017 August 29
by Amaya Webster

As part of our continuing work creating tools for making more accessible content available to students with disabilities, Benetech has long explored copyright issues surrounding the distribution of such content. Fortunately, recognizing the need for clarification of copyright issues, OSEP required that the DIAGRAM Center explore the application of certain key legal principles to the provision of accessible educational materials. Working with pro bono counsel from the law firm of Frankfurt Kurnit Klein & Selz PC, based in New York City, we now have a clearer understanding of the legal arguments that can be brought to bear for good faith efforts such as ours to provide equitable access to educational materials to students with disabilities.  They made some great recommendations that we plan to implement.

Much of the DIAGRAM Center’s work has been about enabling the creation of alternative derivatives of educational content that explicitly meet the format and feature needs of students with a range of disabilities. We believe that for any reproduction, distribution, public display, or creation of such derivative work by Benetech focused on creating accessible content, we will have a strong fair use defense against claims of copyright infringement. Additionally, Benetech can make a public policy argument that our use of copyright protected work to create accessible content comports with the spirit of copyright law and with Congressional actions to ensure equal access for disabled individuals. In short, entities like Benetech should, by taking some basic precautions, be able to avoid direct copyright infringement liability arising from accessibility tools like Poet or Imageshare.

Benetech’s plan to have content creators utilize the production tools offered by DIAGRAM to create accessible content and further contribute content to Imageshare may also raise secondary infringement liability concerns as well. But with the right precautions, we believe potential secondary liability based on the use of our production tools is minimal. As Imageshare may begin accepting accessible content submitted by third parties, such as teachers, it may also benefit from the application of the Digital Millennium Copyright Act (DMCA) safe harbors. This path requires being in compliance with specific rules, including those around take-down requests that are made by copyright holders.

We view these recommendations as a positive and encouraging sign. As planned, we are moving forward with Poet and Imageshare with renewed confidence that a legal door remains open to ensure that copyright law is supportive of the production of accessible educational materials intended to benefit students with disabilities.

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