SUNY Empire Copyright Information Website: Copyright and Accessibility

We are legally required to comply with Copyright law (Title 17 of the US Code.) We are also legally required to comply with Accessibility law (the ADA and 501c3.) Occasionally those seem to come into conflict. Here are some scenarios.

• I want to link to a YouTube video in my course, but the YouTube video doesn't have useful closed captions. I've contacted the owner of the video and they haven't responded. I want to find a way to add my own captions.
• There's a very old New York Times article in the database that is a perfect primary source for my course. It's not readable by a screenreader, because it's just a picture of the old paper. The vendor says it's too blurry to run through OCR software, so they won't help. I want to transcribe it in Word and put that in my course. 
• There's an online simulation that I want to use for a lab, but it can't be operated without a mouse. My students who can only use keyboards aren't able to use it unless we get someone to rebuild it with keyboard navigation built in. 

Here are some options:

• Don't use that material. Use something accessible, or something in the Creative Commons that gives you automatic permission to alter it. This is simple and free of legal risk. However, if that material was really the best available to help your students learn what they need to learn, it's a big loss. 
• Beg, plead, and nag to get the copyright owner to make the necessary changes, that they should have made to begin with. In a perfect world, this would work. In our world, many works have been abandoned by their copyright owners, and many copyright owners are too busy to do unpaid work. 
• Get a license to make the necessary changes. You may or may not get one, and you may or may not be able to afford it. 
• Finally, if it is your only viable option, make the necessary changes and use the material. If the material really is the best available for your course, then you should use it. If you use it, you have to make sure that students with disabilities will have an equivalent learning experience to their peers without disabilities. 

If you are going to use the material and make it accessible, here are the things you need to do and take into account:

• Accept that you are using the Fair Use exemption to Copyright. The TEACH Act will not cover making alterations. The library's license to the original won't cover embedding an accessible copy. It's Fair Use or nothing.
• Embrace the fact that you have to make this resource fully accessible with as few hurdles, barriers, and inconveniences to our disabled students as possible, even if that means turning the material into a derivative work without permission. You can do that because this is a Fair Use. We're going to make that case based on the non-profit, educational, socially beneficial purpose of the use, and the deliberate measures we take to limit market effect.
• Because it is a Fair Use, and because you are making a derivative work that potentially has a market effect, you need to reduce the impact as much as possible. In practice, this means that your accessible version will never be available to anyone but students enrolled in this particular course, while they are enrolled in this course.
• You mark the content as copyrighted, attribute it correctly, and include a sentence about how it is not to be further copied, distributed, or used to make derivative works. You can do this in the caption, a cover page, a title screen, or wherever it makes sense. For example,

"Original Work [accessible version], by Copyright McHolder. This accessible version, created for a limited audience, is provided under Fair Use, and is not to be used outside of the SUNY Empire Learning Management System. Further copying, distribution, and derivative works are prohibited by law."

• Inside the course in the LMS, you make the accessible version available in the same place as the original version. You do not require disabled students to ask for it or search for it. 
• You do all this before you run the course. This is time consuming, and if you make a disabled student wait that long for required content, you are providing anything but an equivalent educational experience.