Equity and Inclusion in Licensing: The

Accessibility Imperative

Judy Ruttenberg, Association of Research Libraries

Charleston Conference November 6, 2013

The Accessibility Narrative

• Personal Stories or Personas • Complaints and Settlements • Universal Design

Agenda

• Law and disability policies • Institutional roles, responsibilities • Licensing and procurement

Law and Disability Policies • ADA of 1990: Titles I, II, III • Rehabilitation Act of 1973: Sec. 504 • Rehabilitation Act, 1998 Amendment:

Sec. 508 (see Assistive Technology Act) • DOJ: Civil Rights Division • Department of Education: Office of Civil Rights

Letter to Colleges and Universities “Requiring use of an emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilities—individuals with visual disabilities—is discrimination prohibited by the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner.” 6/29/2010 http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201105-pse.html

Complaints and Settlements

Case Western Reserve Reed College

Pace University Arizona State University

Princeton University Darden School of Business, UVA

Louisiana Tech University

Complaints and Settlements

Penn State University Florida State University

Free Library of Philadelphia Sacramento Public Library

University of Montana

Copyright

• Copyright Act: Sections 107, 108, and 121

• The Authors Guild v. HathiTrust

Chafee Amendment (121)

Copies may be distributed to “individuals with a disability” who are certified by a competent authority as unable to read normal printed material as a result of physical limitations.

Chafee Amendment

Distributed by an authorized entity—a government agency or a nonprofit organization—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.”

The Authors Guild v. HathiTrust •  Fair use is a supplement to Section 108. • Mass digitization for search, preservation,

and accessibility is fair use and is transformative.

• Use of entire work is fair use. • ADA requires, and fair use and Chafee

Amendment allow, digitization for accessibility.

•  Library collections must be equally accessible to the print disabled.

The Authors Guild v. HathiTrust “The ADA requires that libraries of educational institutions have a primary mission to reproduce and distribute their collections to print-disabled individuals, making each library a potential ‘authorized entity’ under the Chafee Amendment.”

-Judge Baer, Jr., October 10, 2012

The Authors Guild v. HathiTrust “I cannot imagine a definition of fair use that would not encompass the transformative uses made by [HDL] 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."

– Judge Baer, Jr., October 10, 2012

Limits of legislation

• Undue burden = (reasonable efforts) • Burden of self-advocacy and self-

disclosure to obtain services • Law lags behind technology: claim of

ADA [or 508] compliance does not mean that the product is accessible, or usable

• WCAG 2.0 and 508 refresh

Institutional Roles

High expectations from the “ADA generation” who grew up with: • Curb cuts • K-12 legislation

“High Expectations: Transforming the American Workforce as the ADA Generation Comes of Age”

http://www.harkin.senate.gov/documents/pdf/52446704c3501.pdf

Recommendation

• Collaborate within institutions • Collaborate across institutions • Advance industry standards

Institutional Actors

• Disability Services • Information Technology • Legal • Libraries • Faculty Development Centers • Diversity and Inclusion Offices • Other?

When your content is digital

0%

10%

20%

30%

40%

50%

60%

70%

E-Resources expenditures as a percentage of library materials expenditures: 1992-2011

Importance of licensing

• Customers lament lack of accessible options.

• Providers claim no customer demand.

• Providers are not liable–your institution is.

Recommendation

Accessibility should be a central decision factor in choosing, licensing, and procuring information products and services: • Databases • Born-digital texts • E-readers • Mobile devices

Procurement Policies California State University Accessible Technology Initiative:

Model Language •  Specify assistive software or devices large-

print interfaces, text-to-speech output, refreshable braille displays, voice-activated input, and alternate keyboard or pointer interfaces.

•  Reference standards: Web Content Accessibility Guidelines published by the World Wide Web Consortium’s Web Accessibility Initiative.

•  Require a VPAT: A current completed Voluntary Product Accessibility Template (VPAT) to detail compliance with the federal Section 508 standards.

Model Language •  Usability: Content must be perceivable and

operable by persons with visual, perceptual, or physical disabilities and be useable with assistive devices, such as screen readers and screen reading software.

•  Stricter standards: Web content must conform with the World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0, initially at Level A and increasing to Level AA.62.

Recommendation

• Negotiate for favorable terms to adapt content to meet the needs of patrons.

• Aggressively assert fair use in support of accessible services for patrons with print disabilities.

Model Language

• Remediation: Licensor will promptly make modifications that will make the Licensed Materials Accessibility compliant.

• Fair use: Licensee shall have right to modify or copy the Licensed Materials in order to make it useable for Authorized Users.

Aim higher

Make digital accessibility imperative: • Cancelation • Indemnification

Resources •  ARL Task Force report (make URLs)

http://www.arl.org/focus-areas/accessibility •  Web Content Accessibility Guidelines (WCAG)

2.0 http://www.w3.org/TR/WCAG20/ •  CSU Accessible Technology Initiative

http://www.calstate.edu/accessibility •  Oregon State University Accessibility

http://oregonstate.edu/accessibility •  Penn State University AccessAbility

http://accessibility.psu.edu •  Watch for: Cornell, others

Thank you!

Questions? Contact me: judy@arl.org