The Law and Accessible Texts: Reconciling Civil Rights and Copyrights

Executive Summary Institutions of higher education (IHEs—colleges, community colleges, and universities) have a mission to provide all students, including those with disabilities (a physical or mental impairment that substantially limits one or more major life activities), with opportunities for a rich, deep, and equitable learning experience, and to provide all researchers with access to a comprehensive and varied collection of information resources to support their work. Several disability rights laws create obligations for IHEs to ensure that students and researchers with disabilities have access to resources, including texts, at a level that is as close as reasonably possible to the level of access provided to those without disabilities. Enforcement actions can be brought by federal government agencies (the civil rights division of the Department of Education, for example) or by private citizens, and the result of these actions has typically been that IHEs are compelled to improve levels of access, including by incorporating new technology, creating new staff positions, and implementing new policies. For years, disability services offices (DSOs—the office or department at an IHE tasked with supporting the needs of users with disabilities) and others involved in fulfilling the requirements of disability rights laws have viewed copyright (the body of law that governs copying, adaptation, distribution, and certain other uses of works of creative expression) as an impediment to their work. They have been uncertain about what is permitted, and have constrained their activities in support of civil rights out of fear of violating copyrights. The tension has dramatically curtailed their efficiency. This fear is due primarily to a misunderstanding of voluntary arrangements DSOs have with some of the biggest publishers. These arrangements place strict constraints on DSOs’ use and reuse of accessible texts, based on the publishers’ view of their commercial interests, not on the law. Some publishers have also included misleading warnings on accessible texts they provide to DSOs. The Law and Accessible Texts: Reconciling Civil Rights and Copyrights 7 In reality, even in the absence of such voluntary arrangements, copyright law provides IHEs with broad, clear authority to create accessible copies of in-copyright works (i.e., to “remediate” them by converting them into a format that makes it possible for users with disabilities to acquire the same information, have the same interactions, and otherwise derive the same benefits as other users), to distribute accessible texts to qualified users, and to retain and share remediated texts in secure repositories for use in serving future qualifying requests. The key provisions in U.S. copyright law that make this possible are Section 121, also known as the Chafee Amendment, and Section 107, the fair use doctrine. Section 121 is a specific but broad exception permitting authorized entities to make copyrighted works available to the print-disabled in accessible formats without permission from the copyright holder. Section 107 is the general right to use copyrighted works without permission when a set of flexible, equitable factors weigh in favor of the use. A landmark case, Authors Guild v. HathiTrust, has established that fair use authorizes IHEs to create and manage repositories of digital texts in support of accessibility, among other legitimate uses. Together, these two rights enacted by Congress permit each step in a workflow that starts with a request from a student or researcher with a disability, involves remediation and delivery of an accessible version to the requestor, and culminates with deposit of the remediated version in a secure repository for appropriate future use (including future remediation) in the service of other requestors. Along the way, copyright law provides some guidance as to how exactly each step might be conducted, but leaves IHEs with discretion to design their systems in consideration of values and priorities both intrinsic and extrinsic to copyright. In addition to copyright, IHEs working together to provide accessible texts to qualified users should consider a range of values and priorities as they decide whether and how to take advantage of their rights. These include their own missions, the privacy and autonomy of those they serve, and the plausible risks (if any) associated with increasing access to information Conclusion In 2016, Stevie Wonder addressed the United Nations, urging member states to ratify the Marrakesh Treaty. He told the assembly, “This is a truly life changing opportunity. It opens the door to the world’s knowledge to the visually impaired people.”89 Indeed, the U.S. ratification of the Marrakesh Treaty is the culmination of a series of developments in U.S. law favoring access to knowledge regardless of ability, from the Rehabilitation Act to the codification of the fair use doctrine in the 1976 Copyright Act, to the passage of the Chafee Amendment and the courts’ decisions in the HathiTrust case. Collectively, these measures create a framework that IHEs and their allies and affiliated entities can leverage to increase access and vastly improve education and research for all. They ensure that institutions with an obligation and a mission to pursue justice also have the right to do so. Perhaps the most striking takeaway from this survey has been the extent to which copyright defers to accessibility, not the other way around. What has emerged is a hierarchy of legal interests, arrayed under the general heading of the First Amendment and its protection for expression and access to information. Contrary to what some have assumed in the past, the first priority under that heading is accessibility, which consistently trumps the exclusive rights granted by copyright when the two come into conflict. This priority is built into the copyright law itself, through both its general fair use right and its specific provisions favoring accessibility. The effort involved in ending the book famine for thousands of students and researchers will be substantial, and there will surely be challenges along the way, but copyright law should not be one of them

The Law and Accessible Texts: Reconciling Civil Rights and Copyrights

Executive Summary Institutions of higher education (IHEs—colleges, community colleges, and universities) have a mission to provide all students, including those with disabilities (a physical or mental impairment that substantially limits one or more major life activities), with opportunities for a rich, deep, and equitable learning experience, and to provide all researchers with access to a comprehensive and varied collection of information resources to support their work. Several disability rights laws create obligations for IHEs to ensure that students and researchers with disabilities have access to resources, including texts, at a level that is as close as reasonably possible to the level of access provided to those without disabilities. Enforcement actions can be brought by federal government agencies (the civil rights division of the Department of Education, for example) or by private citizens, and the result of these actions has typically been that IHEs are compelled to improve levels of access, including by incorporating new technology, creating new staff positions, and implementing new policies. For years, disability services offices (DSOs—the office or department at an IHE tasked with supporting the needs of users with disabilities) and others involved in fulfilling the requirements of disability rights laws have viewed copyright (the body of law that governs copying, adaptation, distribution, and certain other uses of works of creative expression) as an impediment to their work. They have been uncertain about what is permitted, and have constrained their activities in support of civil rights out of fear of violating copyrights. The tension has dramatically curtailed their efficiency. This fear is due primarily to a misunderstanding of voluntary arrangements DSOs have with some of the biggest publishers. These arrangements place strict constraints on DSOs’ use and reuse of accessible texts, based on the publishers’ view of their commercial interests, not on the law. Some publishers have also included misleading warnings on accessible texts they provide to DSOs. The Law and Accessible Texts: Reconciling Civil Rights and Copyrights 7 In reality, even in the absence of such voluntary arrangements, copyright law provides IHEs with broad, clear authority to create accessible copies of in-copyright works (i.e., to “remediate” them by converting them into a format that makes it possible for users with disabilities to acquire the same information, have the same interactions, and otherwise derive the same benefits as other users), to distribute accessible texts to qualified users, and to retain and share remediated texts in secure repositories for use in serving future qualifying requests. The key provisions in U.S. copyright law that make this possible are Section 121, also known as the Chafee Amendment, and Section 107, the fair use doctrine. Section 121 is a specific but broad exception permitting authorized entities to make copyrighted works available to the print-disabled in accessible formats without permission from the copyright holder. Section 107 is the general right to use copyrighted works without permission when a set of flexible, equitable factors weigh in favor of the use. A landmark case, Authors Guild v. HathiTrust, has established that fair use authorizes IHEs to create and manage repositories of digital texts in support of accessibility, among other legitimate uses. Together, these two rights enacted by Congress permit each step in a workflow that starts with a request from a student or researcher with a disability, involves remediation and delivery of an accessible version to the requestor, and culminates with deposit of the remediated version in a secure repository for appropriate future use (including future remediation) in the service of other requestors. Along the way, copyright law provides some guidance as to how exactly each step might be conducted, but leaves IHEs with discretion to design their systems in consideration of values and priorities both intrinsic and extrinsic to copyright. In addition to copyright, IHEs working together to provide accessible texts to qualified users should consider a range of values and priorities as they decide whether and how to take advantage of their rights. These include their own missions, the privacy and autonomy of those they serve, and the plausible risks (if any) associated with increasing access to information Conclusion In 2016, Stevie Wonder addressed the United Nations, urging member states to ratify the Marrakesh Treaty. He told the assembly, “This is a truly life changing opportunity. It opens the door to the world’s knowledge to the visually impaired people.”89 Indeed, the U.S. ratification of the Marrakesh Treaty is the culmination of a series of developments in U.S. law favoring access to knowledge regardless of ability, from the Rehabilitation Act to the codification of the fair use doctrine in the 1976 Copyright Act, to the passage of the Chafee Amendment and the courts’ decisions in the HathiTrust case. Collectively, these measures create a framework that IHEs and their allies and affiliated entities can leverage to increase access and vastly improve education and research for all. They ensure that institutions with an obligation and a mission to pursue justice also have the right to do so. Perhaps the most striking takeaway from this survey has been the extent to which copyright defers to accessibility, not the other way around. What has emerged is a hierarchy of legal interests, arrayed under the general heading of the First Amendment and its protection for expression and access to information. Contrary to what some have assumed in the past, the first priority under that heading is accessibility, which consistently trumps the exclusive rights granted by copyright when the two come into conflict. This priority is built into the copyright law itself, through both its general fair use right and its specific provisions favoring accessibility. The effort involved in ending the book famine for thousands of students and researchers will be substantial, and there will surely be challenges along the way, but copyright law should not be one of them

Imaging the Respiratory Transition at Birth: Unravelling the Complexities of the First Breaths of Life

Rationale: The transition to air-breathing at birth is a seminal respiratory event common to all humans, but the intrathoracic processes remain poorly understood. Objectives: The objectives of this prospective, observational study were to describe the spatiotemporal gas flow, aeration and ventilation patterns within the lung in term neonates undergoing successful respiratory transition. Methods: Electrical impedance tomography was used to image intrathoracic volume patterns for every breath until six minutes from birth in neonates born by elective cesearean section and not needing resuscitation. Breaths were classified by video data, and measures of lung aeration, tidal flow conditions and intrathoracic volume distribution calculated for each inflation. Measurements and Main results: 1401 breaths from 17 neonates met all eligibility and data analysis criteria. Stable functional residual capacity was obtained by median (IQR) 43 (21, 77) breaths. Breathing patterns changed from predominantly crying (80.9% first minute) to tidal breathing (65.3% sixth minute). From birth tidal ventilation was not uniform with the lung, favouring the right and non-dependent regions; p<0·001 versus left and dependent (mixed effects model). Initial crying created a unique pattern with delayed mid-expiratory gas flow associated with intrathoracic volume redistribution (pendelluft flow) within the lung. This preserved functional residual, especially within the dorsal and right regions. Conclusions: The commencement of air-breathing at birth generates unique flow and volume states associated with marked spatiotemporal ventilation inhomogeneity not seen elsewhere in respiratory physiology. At birth neonates innately brake expiratory flow to defend functional residual capacity gains and redistribute gas to less aerated regions

Effectiveness of individualized lung recruitment strategies at birth: An experimental study in preterm lambs

Respiratory transition at birth involves rapidly clearing fetal lung liquid and preventing efflux back into the lung while aeration is established. We have developed a sustained inflation (SIOPT) individualized to volume response and a dynamic tidal positive end-expiratory pressure (PEEP) (open lung volume, OLV) strategy that both enhance this process. We aimed to compare the effect of each with a group managed with PEEP of 8 cmH2O and no recruitment maneuver (No-RM), on gas exchange, lung mechanics, spatiotemporal aeration, and lung injury in 127 ± 1 day preterm lambs. Forty-eight fetal-instrumented lambs exposed to antenatal steroids were ventilated for 60 min after application of the allocated strategy. Spatiotemporal aeration and lung mechanics were measured with electrical impedance tomography and forced-oscillation, respectively. At study completion, molecular and histological markers of lung injury were analyzed. Mean (SD) aeration at the end of the SIOPT and OL V groups was 32 (22) and 38 (15) ml/kg, compared with 17 (10) ml/kg (180 s) in the No-RM (P = 0.024, 1-way ANOVA). This translated into better oxygenation at 60 min (P = 0.047; 2-way ANOVA) resulting from better distal lung tissue aeration in SIOPT and OLV. There was no difference in lung injury. Neither SIOPT nor OLV achieved homogeneous aeration. Histological injury and mRNA biomarker upregulation were more likely in the regions with better initial aeration, suggesting volutrauma. Tidal ventilation or an SI achieves similar aeration if optimized, suggesting that preventing fluid efflux after lung liquid clearance is at least as important as fluid clearance during the initial inflation at birth

Effectiveness of individualized lung recruitment strategies at birth: An experimental study in preterm lambs

Respiratory transition at birth involves rapidly clearing fetal lung liquid and preventing efflux back into the lung while aeration is established. We have developed a sustained inflation (SIOPT) individualized to volume response and a dynamic tidal positive end-expiratory pressure (PEEP) (open lun

Time to lung aeration during a sustained inflation at birth is influenced by gestation in lambs

BackgroundCurrent sustained lung inflation (SI) approaches use uniform pressures and durations. We hypothesized that gestational-age-related mechanical and developmental differences would affect the time required to achieve optimal lung aeration, and resultant lung volumes, during SI delivery at birth in lambs.Methods49 lambs, in five cohorts between 118 and 139 days of gestation (term 142 d), received a standardized 40 cmH2O SI, which was delivered until 10 s after lung volume stability (optimal aeration) was visualized on real-time electrical impedance tomography (EIT), or to a maximum duration of 180 s. Time to stable lung aeration (Tstable) within the whole lung, gravity-dependent, and non-gravity-dependent regions, was determined from EIT recordings.ResultsTstable was inversely related to gestation (P<0.0001, Kruskal-Wallis test), with the median (range) being 229 (85,306) s and 72 (50,162) s in the 118-d and 139-d cohorts, respectively. Lung volume at Tstable increased with gestation from a mean (SD) of 20 (17) ml/kg at 118 d to 56 (13) ml/kg at 139 d (P=0.002, one-way ANOVA). There were no gravity-dependent regional differences in Tstable or aeration.ConclusionsThe trajectory of aeration during an SI at birth is influenced by gestational age in lambs. An understanding of this may assist in developing SI protocols that optimize lung aeration for all infants

May 2017 Meeting

Notes from the May Meetin