NIMAS Terms Clarified Post Marrakesh
The Marrakesh Treaty has resulted in changes to the disability categories used to determine eligibility for NIMAS-derived materials. Additionally, the term “accessible formats” replaces “specialized formats.”
The terms “eligible person” and “accessible formats” are now used in relation to the National Instructional Materials Accessibility Standard (NIMAS) provisions of IDEA.
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled was adopted in 2013 by the International World Intellectual Property Organization (WIPO), and its provisions were incorporated into United States law as the Marrakesh Treaty Implementation Act (MTIA) in 2018. The MTIA updated section 121 of the U.S. Copyright Law (also known as the “Chafee Amendment”) to meet the terms of the treaty. The goal of both the treaty and the MTIA is to ensure equitable access to books and other text-based materials by individuals with certain disabilities.
In December 2019, Congress also updated the statute authorizing the National Library Service for the Blind and Print Disabled at the Library of Congress (NLS statute). This statute is sometimes called “An Act to provide books for the adult blind.” In order to provide consistency with the MTIA, Congress revised the NLS statute to include some of the new terminology that the MTIA had incorporated into section 121 of the Copyright Law.
The statutory changes introduced by the MTIA amendments to section 121 and revised NLS statute have implications for the provisions in the Individuals with Disabilities Education Act (IDEA) pertaining to the National Instructional Materials Accessibility Standard (NIMAS). The NIMAS provisions of IDEA, in fact, reference both section 121 and the NLS statute. The statutory changes impacting the NIMAS provisions are as follows:
- The term “eligible person” is now used to describe students who qualify for NIMAS-derived materials and
- The term “accessible formats” is now used to describe the types of formats that may be developed from NIMAS file sets.
“Eligible Person” Is Now Used to Describe Students Who Qualify for NIMAS-Derived Materials
Under IDEA, in order for students to be eligible for NIMAS-derived materials, they must: (1) be receiving special education services under IDEA and (2) meet the qualification criteria of the NLS statute. As part of the recent update to the NLS statute, Congress revised the NLS qualification language to include the new term “eligible person,” defined in the MTIA as:
(A)n individual who, regardless of any other disability—
(A) is blind;
(B) has a visual impairment or perceptual or reading disability that cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or
(C) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading.
Thus, going forward, in order to be eligible for NIMAS-derived materials, students must be receiving services under IDEA and fall under one of the disability categories identified above. In February of 2021, the Library of Congress published the following list of professionals who can certify a student as eligible to receive NIMAS-derived materials:
doctor of medicine, doctor of osteopathy, ophthalmologist, optometrist, psychologist, registered nurse, therapist, and professional staff of hospitals, institutions, and public or welfare agencies (such as an educator, a social worker, case worker, counselor, rehabilitation teacher, certified reading specialist, school psychologist, superintendent, or librarian).
“Accessible Formats” Is Now Used to Describe the Types of Formats that May Be Developed from NIMAS File Sets
The MTIA amendments to section 121 also replaced the term “specialized formats” with the term “accessible formats,” which is defined as:
[A]n alternative manner or form that gives an eligible person access to the work when the copy or phonorecord in the accessible format is used exclusively by the eligible person to permit him or her to have access as feasibly and comfortably as a person without such disability.
The NIMAS provisions of IDEA reference section 121 in describing the types of formats that may be developed from NIMAS file sets. Therefore, going forward, the term “accessible formats” should be used in relation to the NIMAS. While the previous term “specialized formats” had identified four specific alternative media – namely, braille, audio, digital text, and large print – the new term “accessible formats” is a more inclusive and functional term that focuses on the experience of the user, emphasizing that an alternative format enables the eligible person to have access to the work “as feasibly and comfortably as a person without such disability.”
The above statutory changes represent a significant step towards eliminating barriers to individuals with disabilities who need accessible materials and technologies.