Category: Education Resources

History of copyright protections

Copyright laws are a backbone of our nation. We borrowed them from England, where the oldest copyright is now more than 500 years old. Originally, copyright laws protected the publishers, not the authors, of written text. Copyright laws in the United states focus more on authors than on publishers; the United State Constitution empowers the U.S. Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Constitution Article I, Section 8, Clause 8.

Current U.S. copyright law: exceptions for individuals with print disabilities

In the U.S., copyright protections may be granted by Congress, but they may also be narrowed by Congress. With respect to individuals with print disabilities, Congress has passed several laws narrowing copyright protections for copyrighted materials distributed in the United States[1] or exported to[2] or imported from[3] countries party to the Marrakesh Treaty.[4]

Requirement for publishers to provide sources files for copyrighted print materials for U.S. K-12 students with print disabilities

For U.S. students with print disabilities in elementary and secondary school, Congress has done more than simply allow the reproduction of copyrighted print materials.[5] On December 3, 2004, the Individuals with Disabilities Education Improvement Act of 2004 became law. This legislation placed an affirmative duty upon states to, by December 3, 2006 (two years later),[6] either participate in NIMAC (National Instructional Materials Access Center) or develop its own system to “provide instructional materials to blind persons or other persons with print disabilities in a timely manner.”[7] This legislation actually requires states to include in every contract for the purchase of print materials a requirement that the publisher provide files needed to make these materials accessible for students with print disabilities.

Obtaining accessible curricular materials for K-12 students with print disabilities in the U.S.

Many times, schools, individual educators, or parents will approach the publisher of print curricular materials asking for these accessible files. Many times, that publisher will claim that it cannot produce “source files” needed to efficiently produce accessible curricular materials for students with print disabilities. It can be helpful to share with that publisher the U.S. copyright law that specifically states, “it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files.”[8] Thus, any publisher’s claim that it cannot provide these materials due to copyright restrictions is wholly without merit.

Nevertheless, it is important to understand that publishers are not required to provide these source files to individual students, parents, teachers, or even school districts. Instead, publishers must provide these files to state departments of education, so school districts should communicate with their state departments of education to obtain NIMAC files for eligible students.

Next steps

All U.S.[9] students with print disabilities should have full access to curricular materials from publishers through NIMAC.[10] Educators seeking access to source files (from which accessible materials may be made efficiently) should contact the NIMAC coordinator for their state. Parents or students wanting this access should ask an administrator at the school to contact your state’s NIMAC coordinator to obtain the file as quickly as possible.

Accessible materials are not limited to NIMAC files

Please note that U.S. students with print disabilities are entitled to accessible curricular materials regardless of whether those materials are available through NIMAC. In fact, the majority of needed curricular materials are likely created by teachers, and none of those are available through NIMAC. Thus, while NIMAC is a great source for publisher-produced curricular materials (like textbooks), U.S. students have the right to a free appropriate public education (FAPE), which includes the provision of ALL curricular materials be provided a format that provides the student “an equal opportunity to participate in, and enjoy the benefits of”[11] use of those curricular materials.

[1] 17 U.S.C. section 121.

[2] 17 U.S.C. section 121A(a).

[3] 17 U.S.C. section 121A(b).

[4] Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities concluded at Marrakesh, Morocco, on June 28, 2013. 17 U.S.C. section 121A(f)(2).

[5] “The term ‘print instructional materials’ means printed textbooks and related printed core materials that are written and published primarily for use in elementary school and secondary school instruction and are required by a State educational agency or local educational agency for use by students in the classroom.” 20 U.S.C. section 1474(e)(3)(C).

[6] 20 U.S.C. section 1412(a)(23)(C)

[7] 20 U.S.C. section 1412(a)(23)(B)

[8] 17 U.S.C. section 121(c).

[9] All fifty U.S. states as well as the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S Virgin Islands participate in NIMAC. Additionally, the Department of Defense Education Activity (DoDEA) participates has a NIMAC coordinator.

[10] National Instructional Materials Access Center

[11] 28 C.F.R. section 35.160(b)(1).

Change can be difficult and scary. Unwanted change stirs up even more emotions. Add in a public health emergency and statewide stay-at-home orders, and many talented professionals will struggle with the planning and implementation of new ways to perform familiar tasks.

For the most part, distance instruction need not be a great departure from in-person instruction. The methods we use to impart information to students and to elicit evidence of learning from them will change to some extent. Nevertheless, tools that have brought success inside the school building, like creative instructional planning, proactive distribution of accessible educational materials, and thoughtful and regular use of formative assessments, will continue to serve our students in the distance learning environment.

First, Determine the “Why?”

When faced with the new challenge to deliver meaningful instruction via distance learning, it is tempting to view this task in terms of the in-person methods with which we are familiar. We analyze our former teaching methods using the questions “Who?” “What?” “When?” “Where?” and “How?”. Many times, this type of inquiry can be overwhelming, and it can cause feelings of hopelessness. After all, there are some tasks we educators do that cannot be replicated via distance learning.

Instead, the first question we should ask ourselves when planning to transition to a new learning platform, like distance learning, is “Why?” Why do we want to teach this lesson; what do we want our students to learn? We must dig down deep to determine the actual purpose of each of our lessons. What are we expecting students to learn from the assignment? When determining our curriculum for emergency distance instruction for the last two months of a school year, we must prioritize those “Why?”s to determine what we must teach via distance instruction so that we may ensure that our students are prepared for the next school year.

Answer Other Questions in Terms of the “Why?”

Once we have determined the “Why?” and have selected the very most important “Why?”s  our students need, we can begin to contemplate the other questions we face.

“Who?”

The “Who?” will certainly be our students. However, our students will achieve mastery of the “Why?” priorities at different times. Some of our students will have already mastered some, or even all, of the priorities we have identified. We may want to add some enrichment ideas for those students to maintain their skills and to move forward in the summer months so that they will be intellectually prepared and emotionally engaged with learning  for the start of the next school year. Some of our students will not have mastered the needed skills yet. We have already determined that each of our students need to master these skills in order to be ready for school in the fall, so we must provide differentiated instruction in order to help our students learn what they need to learn.

Parents, families, and caregivers are the other “Who?” in the education of a child. Inside the school building, it can be challenging to engage these stakeholders; the school building is a barrier between the teacher and the family. In the distance learning environment, families are likely omnipresent, and we should embrace this opportunity to engage them in the learning process. View the increased availability of parents as a silver lining of the COVID-19 cloud.

“What?”

Again, the prioritization list developed in the “Why?” analysis makes the task of choosing “What?” to teach easier. For language arts, we know the minimum knowledge a student must have mastered to be prepared for the next school year. We can review the students’ level of mastery before school closure, compare that to the mastery level needed for the following school year, and we are left with the minimum level of mastery our student need to achieve by the fall. We would use this same process with all academic content. So long as students receive this minimum level of instruction, they will be ready to learn when in-person schooling resumes.

Consider an elementary physical education class. While it is not “core” academic instruction, it is important for student development (otherwise, we would not dedicate our scarce educational resources to it). Some “Why?”s in physical education class include preparing students for a lifetime of physical fitness, developing transferrable skills (like hand-eye coordination), and cooperative social skill building. One activity addressing these skills is a game where students stand in a circle, and one student has a ball. Each student is assigned a number, and the student throwing the ball must call out the number of the person to whom s/he is throwing the ball. The receiving student must catch the ball and then throw it to another student, calling out that student’s number. In addition to the physical aspect of this game, it teaches listening skills (to be ready when one’s own number is called), and it forces students to pay attention to others in the group and remember their numbers). How to do this via distance? The audio would be identical, but instead of throwing the ball to another student, the student would throw the ball up and catch it—both when the student’s number is called and when calling another student’s number. We could make it more fun by throwing other things, like a favorite toy or stuffed animal instead of a ball. By focusing on the “Why?” of the activity, it is much easier to adapt the activity to a distance learning platform.

“When?”

“When?” may seem an easy question to answer. However, the realities of stay-at-home orders complicate this question significantly. Just as many parents of our students are working from home, many educators have children at home, and they must parent their home learners as well as provide instruction to their students.

In school buildings, the “When?” is immutable; schedules are wholly dependent on building hours. In the distance learning environment, we are not so constrained. We need not limit instructional availability to just a few hours each morning.

Distance learning provides opportunities to tailor instructional delivery to the needs of students, their families, and teachers. For example, the “flipped classroom” provides significant flexibility. Teachers will prepare instructional media (ensuring that all students have access to the medium). Types of instructional media include YouTube videos, audio-only podcasts, recorded telephone messages, etc., and teachers can prepare these anytime during the week. Not only will students and families be able to access this instruction at any time, they will be able to repeat and review it. Live instruction would then be an opportunity for students to discuss the assignment and to engage in much-needed social interaction with their peers and their teacher. By focusing on interaction in the live lesson, teachers are better able to assess student knowledge and further differentiate instruction as needed.

“Where?”

In general, the “Where?” of distance instruction will be at the student’s home. As noted above, the “Where?” may be in front of a computer or tablet screen, on the telephone, or listening to instruction on a local radio station. Of course, those devices need not be confined to one location in the student’s home. Just as we have “comfy” bean bags in the classroom, and just as we sometimes take learning outside to a patch of grass behind the school building, our students can take their devices anywhere safe to engage in the learning process.

“How?”

In the physical classroom, professional educators provide differentiated instruction every day, but how can it be done in the world of distance learning? As noted above, distance learning affords us different opportunities to interact with our students and their families. We no longer must commute to work, we do not spend time changing classes, etc., so we have additional time available to call families and provide the extra assistance some of our students need. We can even set up “tutoring” sessions so that several students needing more intensive instruction and practice may do so with the teacher outside of “official” class time.

For most schools, the greatest obstacle to distance learning is ensuring that all students have access to it. Some schools will not be able to provide online learning experiences, but they can provide telephone instruction in combination with hard copy paper instructional materials. Again, by focusing on the “Why?” of the instruction, we can embrace the “open doors” provided by distance instruction to determine the “How?”

What About Students with Disabilities?

Students with disabilities are, first and foremost, students. The same “Why?” inquiry needs to be made for them—in terms of academic content, need for social interaction, and for any services, accommodations, modifications, and assistive technology they need to access a free appropriate public education (FAPE).

Even when schools were open, IEP teams had the duty to provide school-purchased assistive technology for use at home when needed for the student to achieve FAPE.[1] School closures do not change this requirement; in fact, it is likely that more assistive technology will be needed when all instruction occurs in the home.

Now, as always, cost cannot be a factor in determining what a student with one or more disabilities needs to assess FAPE and to become prepared for post-secondary education, post-secondary employment, and independent living. In March, Congress appropriate more than $13.2 billion dollars to schools for COVID-19 expenses—almost doubling the entire Fiscal Year 2020 federal appropriation for special education.

With regard to services, use the “Why?” approach. What does the student need to be prepared for the upcoming school year (both academic and needs)? For years, therapy services (physical, occupational, speech) have been provided via distance, and even “hands-on” services like Braille and cane travel instruction can be provided using distance technology.

Bottom Line

Approach challenges wearing the hat of an educator. Put aside the administrative details until after making the determination of the minimum education required. When considering the administrative details, think outside the four walls of the classroom. Embrace the opportunities distance instruction provides, and know that sound instructional practices transcend physical location and method of delivery.

[1] 34 C.F.R. section 300.105(b).