Providing alternative formats for staff and students can be a challenging business. What happens when an external library member or an ex-student library user makes a request?
This question came to us recently so we put it to our subject specialists for technology and the law – John Kelly and Jackie Milne worked together to give us this response.
The main areas of law are discussed below. These issues may need more in-depth consideration for individual learning providers.
In terms of copyright law, as an ‘authorised body’ (an educational establishment), you may copy and make a work accessible without the rights holders permission provided an individual has lawful possession, or lawful use, of a copy AND their disability prevents them from enjoying the work to the same degree as a person who does not have that disability. A key word here is “may” – the exception permits it, but does not mandate it. This provision isn’t limited to students with a disability enrolled at the institution.
In terms of equality, legal obligations arise for learning providers. Discrimination occurs when someone with a disability is treated unfairly and is put at a disadvantage when compared with a non-disabled person.
Publishers may choose to fulfil an institution’s request for alternative formats or not; there is no legal obligation on them to do so. A publisher may also choose to provide an alternative format of a work for enrolled students only, or staff of an institution. Such a position is not unlawful as they are drawing the line at a specific point which applies equally to all those not enrolled as learners.
On the other hand there IS an obligation on the library to make works available equally to all of its ‘users’. It may lawfully decide not to provide a full range of services to all alumni, or to other external users. What is not permitted is to provide a service to some alumni and to distinguish between those with, and those without, a disability. In that situation you are, on the face of it, acting in a discriminating and unlawful way.
It’s not clear how successfully it could be argued that you are not providing an accessible format for a person with a disability because they are a “reference only” user. As a “reference only” user, the person with a disability would be unable to access materials that other “reference only” users could access, hence the difficulty remains. In other words you have to provide the same service to all disabled users, whether they are students of the institution, or “reference only” users.
Where additional resources are required, this by itself, is unlikely to justify withholding the service.