Updated 9 February 2009
The questions below are based on general queries posted to our enquiry service.
JISC Legal would like to remind you that the information being provided is for informational purposes only and should not be construed as constituting legal advice. Click here for full disclaimer
Questions
- As an institution we are contemplating recording and mounting one-off lectures on our website. We understand that there is now a requirement for all broadcasts to cater for those with visual and auditory impairments. Can you please advise on the current legal requirements?
- Our institution would like to upload mp3 files for distribution to students via a VLE. What is the current legal position?
- Is it permissible under UK legislation to convert old audiotapes to mp3 files on a network provided that it is for the personal use of a visually impaired person under the Copyright (visually Impaired Persons) Act 2002 (CVIPA)?
- What does an institution need to do to comply with accessibility law?
- We have funding for a new project and will have a project website does it need to be accessible and if so are there any standards or help.
1. As an institution we are contemplating recording and mounting one-off lectures on our website. We understand that there is now a requirement for all broadcasts to cater for those with visual and auditory impairments.Can you please advise on the current legal requirements?
The Disability Discrimination Act (DDA) 1995 (as amended) places an obligation on educational service providers not to discriminate against students in the provision of its student services which would include resources and teaching. The DDA is written broadly enough not to lay down specific requirements, but in basic terms you should have a plan as to how you are going to provide the information to those disabled students who are being encouraged to use your website.
E-learning authors and institutions should take such steps as it is reasonable, in all the circumstances of the case to ensure that the e-learning environments, and the materials that are made available through those systems, are accessible to students with disabilities and to ensure that substantial disadvantage does not occur. Further reading on this can be accessed from the JISC Legal website at:
http://www.jisclegal.ac.uk/disability/accessibility.htm
Of course, what is reasonable will always depend on the exact circumstances of a particular case, and as far as e-learning development and authoring is concerned there is no case law to aid in setting boundaries. However, examples and help in providing a good learning experience for disabled students may be had from the TechDis service at http://www.techdis.ac.uk/ and may need to take into account factors such as effective learning experience, ease of access to information, and current good practice in the sector.
Sometimes e-learning content cannot, for whatever reason, be provided in an accessible form (for instance, copyright or licensing restrictions or excessive cost). In such situations, e-learning authors should work with their institutions to consider alternative means of providing students with disabilities access to that material. This might include involving support staff to assist a student in accessing and using the e-learning environment, or providing problem materials offline or a combination of various approaches.
For a readable though lengthy explanation of the up-to-date law in this area, a good starting place is the Post 16 Code of Practice available to download from the Commission for Equality and Human Rights website at http://www.equalityhumanrights.com/Documents/DRC/rename/tsodrccop-web%20post%2016%20cop%20240407.pdf
The teachability project at http://www.teachability.strath.ac.uk/ also has practical guidance.
The other legal aspect to consider in placing the material on your web site is the copyright and other IPR issues - a couple that immediately spring to mind are e.g. if the lecture uses third party material, do you have copyright clearance to use it, and has the lecturer himself consented to his appearance on the internet (i.e. he will strictly speaking have performance rights)?.
2. Our institution would like to upload mp3 files for distribution to students via a VLE. What is the current legal position?
The Copyright, Designs and Patents Act (CDPA) 1988 grants some exclusive rights to the owner of a copyright work which include the right to copy, issue copies, the right to communicate a work to the public and also the right to make an adaptation of it. Converting and uploading music tracks into mp3 format on a VLE would mean infringing these rights of the copyright owner, unless done with the copyright owner's permission. Also, music files are mostly made available under certain terms and conditions which might restrict copying or adaptation of them. So, if a member of staff wishes to create an MP3 file from a CD and make it available on a VLE, it might be an infringement of the copyright and might breach the licence terms of the CD. The Western Colleges Consortium contains a help and support guidance which reads:
Can I upload mp3 files to the Virtual Campus?
The answer is not that simple and basically it is yes and no!
Yes if you hold the rights to the content of the mp3 file. No if you do not hold the rights to the content of the mp3 file. mp3 is a file format and not illegal in itself.
You can create sound recordings and convert them to mp3 format and upload those to the Virtual Campus without any issues whatsoever. These may be recordings of your lectures, of you talking. The controversy over mp3 is when it is used to compress copyrighted music tracks and then distribute them over the internet.
You can record your voice and convert into mp3 format and upload that to the Virtual Campus. You can not convert a music track from a copyrighted compact disc into mp3 format and then upload that to the Virtual Campus.
You can not upload an mp3 file to the Virtual Campus unless the copyright owner has specifically given you permission to distribute the file (and this applies to everything on the internet). We are not just talking about uploading mp3 files found on the internet, just because you have purchased the CD does not mean that you have purchased the rights to distribute or broadcast the CD, you generally have only purchased the right to listen to the music in your home. Therefore you could not play the CD in a classroom environment. You also need to check that if a copyright owner has given you permission that it is permission for the use in an educational context and not for personal use only.
An exception thus is where a member of staff is the content owner of the mp3. If not, the short answer is that you might need either permission from the copyright owner to create and distribute the mp3 files on a VLE or obtain it through a licence.
3. Is it permissible under UK legislation to convert old audiotapes to mp3 files on a network provided that it is for the personal use of a visually impaired person under the Copyright (visually Impaired Persons) Act 2002 (CVIPA)?
The Copyright (Visually Impaired Persons) Act (CVIPA) 2002 amended the Copyright, Designs and Patents Act 1988 (CDPA) by creating exceptions for making copies in alternative formats for visually impaired people. This was in the form of two sections 31A and 31 B that were inserted into the CDPA.
The relevant sections read:
Section 31 A: Making a single accessible copy for personal use
(1) If a visually impaired person has lawful possession or lawful use of a copy (the master copy) of the whole or part of -
(a) a literary, dramatic, musical or artistic work; or
(b) a published edition,
which is not accessible to him because of the impairment, it is not an infringement of copyright in the work, or in the typographical arrangement of the published edition, for an accessible copy of the master copy to be made for his personal use.
(2) Subsection (1) does not apply -
(a) if the master copy is of a musical work, a part of a musical work, and the making of an accessible copy would involve recording a performance of the work or part of it;
Section 31 B: Multiple copies for visually impaired persons
(1) If an approved body has lawful possession of a copy (the master copy) of the whole or part of -
(a) a commercially published literary, dramatic, musical or artistic work; or
(b) a commercially published edition,
it is not an infringement of copyright in the work, or in the typographical arrangement of the published edition, for the body to make, or supply, accessible copies for the personal use of visually impaired persons to whom the master copy is not accessible because of their impairment
(2) Subsection (1) does not apply -
(a) if the master copy is of a musical work, a part of a musical work, and the making of an accessible copy would involve recording a performance of the work or part of it
In summary, these sections may permit the making of single or multiple copies of only literary, dramatic, musical or artistic works by or on behalf of a visually impaired person for their personal use. It is to be noted that musical work here would include only sheet music that is in print format. The sections do not allow for making a single copy or copies of musical works where making an accessible copy would mean recording of the performance. This would mean that converting audio tapes to mp3 in order to make it accessible would not be permitted under the CVIPA.
And further, it is worth noting that these exceptions do not apply to sound recordings which are what the old audio tapes really are.
So, if the old audio tapes are converted to mp3 formats for access by a visually impaired person on a network, it could be treated as an infringement of copyright law.
The situations where accessible copies of old audiotapes can be converted into mp3 formats and put on a network include:
1) where permission has been obtained directly from the copyright owner of the recording of the audio tape to create and distribute the mp3 files on a network for a visually impaired person.
2) where permission to use the recording has been obtained through a licence from one of the collective licensing society. The relevant copyright licensing authority to approach in this regard would be the Mechanical Copyright Protection Society (MCPS). Their website is http://www.mcps-prs-alliance.co.uk/Pages/default.aspx
Or
3) where copyright in the recording of the old audio tape has elapsed, it may be freely used.
4. What does an institution need to do to comply with accessibility law?
The Disability Discrimination Act 1995 at S28R (2) states It is unlawful for the body responsible for an educational institution to discriminate against a disabled student in the student services it provides or offers to provide. Similar provisions exist with regard to employment and services other than educational services.
Need to comply with the Disability Equality Duty and proactively promote accessibility as well as complying with the duty not to discriminate and with the new Public Contract Regulations
5. We have funding for a new project and will have a project website does it need to be accessible and if so are there any standards or help.
Yes, if you are using your website to provide a service for example information to students or other third parties the Disability Discrimination Act 1995 states that you should not discriminate against disabled persons in the provision of the service. Further reading is available from the JISC Legal website at:
http://www.jisclegal.ac.uk/disability/accessibility.htm
Further, the latest British Standards Institution (BSI) guidelines - PAS 78 Guide to Good Practice in Commissioning Accessible Websites which you can download from the Equality and Human Rights Commission website should be of help. It is available at:
http://www.equalityhumanrights.com/en/publicationsandresources/Pages/PAS78.aspx
Updated 9 February 2009
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Further FAQs
The Action on Access Team have FAQ's on student support and teaching and learning at - http://www.actiononaccess.org/index.php?p=2_6_1