Applying the Rule to Library Content

In this Section:

As a profession, librarians have been forward-thinking about providing access to information to everyone, including people with disabilities. It will take time to see how the regulation and exceptions apply to library content.

First Steps

As a profession, librarians have been forward-thinking about providing access to information to everyone, including people with disabilities. It will take time to see how the regulation and exceptions apply to library content.

The Department of Justice has suggested first steps towards developing an accessibility plan, which may need to be slightly modified for libraries. Libraries can use the exceptions as a framework to prioritize the accessibility of current resources that are most widely and consistently used.

Some libraries are approaching prioritization in teams with their institution’s legal and ADA experts, as well as experts in e-resources, IT, and digital collections. Such a group can begin by creating an inventory of the categories of content your library makes available online. For instance, your library may host some or all of the following categories of content:

  • Third party licensed e-resources, e.g. scholarly journals, databases.
  • Institutional repositories, which host faculty scholarship, student work, etc.
  • Legacy digitized content, e.g. scans of newspapers in a historical newspaper database.
  • Special collections, e.g. digitized content from archival collections.
  • Virtual services, e.g. online chat, virtual reference/consultation.
  • Digital archives, e.g. an oral history collection in ContentDM

Library expertise can inform how an institution prioritizes accessibility. Priority should be given to content that is currently used in courses, current subscribed content, and newly digitized content. Other types of content, like oral recordings or scans of texts in obscure dialects, might be an undue burden under Title II if the library cannot hire an expert who knows that language.

Below is a sample approach applying the exceptions framework to help prioritize making content accessible, using the specific example of licensed e-resources. If you answer “yes” to all the questions in an exception, that exception may apply.

(Note that the archived web content exception includes four questions; the archived web content exception applies only if the answer is yes to all four questions). Consider using a blank version of this chart – included in the “Resources” section of this document—to talk through this analysis with disability experts in your own library.

Example: Applying ADA Title II exceptions to electronic resources

Exception

Question(s)

Sample analysis for the use case of electronic resources

Archived web content exception
  1. Was your content created before the compliance date for your library, or does the content reproduce paper documents created before the compliance date? AND

Exception likely fails, as “yes” cannot be answered to all four questions within this exception. This could potentially apply to some e-resource content that was created prior to the compliance date, but only if it reproduces other physical media or paper documents that were created prior to the compliance date; it would not apply to fully open access books or journals, and possibly not to books or journals that are not also purchased by the institution in print form (i.e. the language about “reproducing” other physical media)
  1. Is your content retained exclusively for reference, research, or recordkeeping? AND

E-resources are generally used for functional purposes like course content or research, and not retained exclusively for reference, research, or recordkeeping; therefore they are no longer exempt
  1. Is your content unaltered or has not been updated after the date of archiving? AND

Possibly, but e-resources are usually not updated or archived, and in all events e-resources do not satisfy the other mandatory questions within this exception
  1. Is your content organized and stored in a dedicated area(s) clearly identified as being archived?

E-resources are usually not archived and stored in areas clearly designated as being archived.

Pre-existing conventional electronic documents exception

Is your content currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities?

Exception likely fails. E-resources are used to “participate in the public entity's services, programs, or activities.”

Individualized, password-protected or otherwise secured conventional electronic documents exception

Is your content a conventional electronic document that is about a specific individual, their property, or their account, and is password-protected or otherwise secured?

Exception likely fails. While this is arguably the closest exception to being applicable to licensed e-resources, it does not apply to e-resource content. E-resource content is not about a specific individual, their property, or their account.

Content posted by a third party

Is your content posted by a third party, where the third party is not posting due to contractual, licensing, or other arrangements with your library?

Exception likely fails. This exception was intended to cover situations in which third parties like members of the public post content to a website you host; you would not be liable for accessibility of their content unless you contracted with or solicited them to do so. By contrast, publishers do not post e-resources to sites you host; you license content from publishers and then distribute the content, or direct users to sites hosted by the publishers themselves.

Preexisting social media posts exception

Is your content a social media post that was posted before the compliance date?

Not applicable. The preexisting social media posts exception is not applicable to licensed e-resources

In this example, it is unlikely that licensed e-resources will fit under an exception, which means the regulation's requirements are applicable. To meet the requirements, public entities can prioritize remediating this content so that it is in compliance with WCAG 2.1 Level AA.

Remediating copyrighted works for use by people with disabilities is legal under US copyright law; for more information, please visit The Law and Accessible Texts: Reconciling Civil Rights and Copyrights.

Frequently Asked Questions

Q. How do libraries triage what needs to be made accessible and prioritize this work?

A: A recommended approach:

  • Inventory all the websites and applications the library “owns”
  • Create a team including people who own those services, websites, and applications to develop a strategy, identify exceptions, and create a roadmap
  • Identify the top priority content: that which does not fall within any exceptions and is currently used to engage with library services, programs, and activities
  • Remove unnecessary content
  • Document the roadmap for all content including justifications and detailed plans
  • Establish workflows for remediating content, especially for content that is not identified as top priority or as an exception (library must allow patrons to request remediation on all content); the remediation process is required to be timely to provide patrons with equal opportunities
  • Train staff so content is created right-first to prevent future remediation work
  • Review roadmaps and content to ensure original decisions hold and reprioritize the remaining content

Q. What conditions can change an exception for a pre-existing document?

A. For instance, if a document is being linked as reading for a course in a school online learning management system or if faculty use the documents for research towards tenure?

Once a document that would otherwise meet the pre-existing conventional electronic documents exception is used to gain access to or participate in the university or college's programs, services, or activities (for which courses are a program, service, or activity), the document no longer qualifies for the exception. ("Documents that are currently being used to apply for, access, or participate in a state or local government’s services, programs, or activities do not fall under the exception even if the documents were posted before the date the government has to comply with the rule.")

Q. How should electronic document formats not specified in the regulation be treated?

For instance, EPUB is a common ebook format in library databases. Should these be treated the same as other pre-existing online documents or as other online resources such as other web and app content?

A: EPUB was discussed in the ADA Title II responses to the NPRM. They are not covered under the conventional electronic documents exception; if they are in an archive, they may qualify if it meets all 4 criteria. In the more detailed response about EPUB and the additional accessibility guidelines available, the ADA office chose to keep it simple by not including additional guidelines beyond WCAG.

So, EPUBs need to meet WCAG 2.1 level AA per the law, but we encourage using additional accessibility guidelines to ensure functional accessibility.

Q. What in the library’s catalog needs to be accessible?

A: The catalog interface and records describing our library items should obviously be accessible, but these records frequently link to third-party vendor sites for pre-existing documents such as PDFs or EPUB ebook content that exist only on the vendor website.

Because this content is obtained through an agreement, license, or subscription, it will mostly not fall under an exception and will need to meet ADA Title II requirements.

Since the content is purchased or subscribed to and offered as part of library services, the content existing on the vendor website still falls under the requirement as the library using the funds to provide access to that content is required to be accessible. The library, as purchaser of the subscription or content, is responsible for using its funds to obtain accessible content.

If an HTML version is available, it's far more likely to have fewer accessibility issues than a PDF version; prioritize the HTML version as the primary catalog link (this de-emphasizes the far more likely-to-be-inaccessible PDF, reducing pressure on the library and vendor but does not eliminate the requirement that the PDF eventually become accessible).

The work that needs to be done here is in vendor negotiations; if enough libraries push back and require WCAG 2.1 level AA, there's a stronger chance of it happening. Check the Payan vs. LACCD lawsuit for potential legal precedent for catalog content. Also be aware of accessibility requirements vendors are facing from the European Accessibility Act. In Europe, both public and private entities need to meet WCAG 2.1 Level AA by June 2025.

Q. Should unremediated documents be hidden until they are fixed or can library patrons still use the content?

Many of these online archives have thousands of preexisting documents that could take years to remediate. How do we handle them until they’re remediated?

A: In this scenario, the library will need to balance access and risk.

First, determine if the “online archive” may fall under the "archived web content" exception;, if it does not meet the four criteria the library should discuss prioritizing remediation (starting with what is known to be in use and working back from there).

If the library has a well documented plan for remediating the content with a timeline and can show progress, the risk of leaving it up and available may be lower. Removing access to inaccessible content may also induce risk based on UC-Berkeley’s lawsuit, so ensure your plan is documented and detailed. It is up to each institution to determine the level of risk they are comfortable with.

Regardless if it falls within the exception or not, each archive must have a remediation plan and be able to respond in a timely manner to remediation requests (these are existing effective communication requirements).

Q. What are the requirements for transcription of handwritten documents, such as historic diaries, stored in public digital collection systems?

A: Many materials of this nature meet the criteria for “archived web content”; they are historic and a digital reproduction may be kept primarily for reference, research, or recordkeeping. This would meet the 1st of 4 criteria for the archived web content exception.

If the materials are stored in an area specifically identified as an archive and aren’t updated, there's a chance it meets the exceptions for archived web content. However, the existing effective communications requirement means a person must have an easy way to request an accessible format (this does not count as a change to the file).

If the documents are being used in something new like a course or exhibit, they no longer meet the exception and must be made accessible.

Q. How should archives approach hundreds of hours of historic audio and video files held in their repositories, such as out of print documentaries, presentations, or oral histories?

A: Use the archival web content exception to help determine how to prioritize the work. Based on the short description in the question, the content will likely meet the 4 criteria for the exception.

For content that does not meet the exception, audio content requires text transcripts, and video content requires captions and audio description.

Q. How do the rules affect the provision of articles and chapters scanned for individual patron use through interlibrary loan and document delivery services?

Some libraries fulfill hundreds and thousands of requests per month and these items are usually delivered directly to a patron’s password protected online account. Would these files be considered under the “individualized document that is password-protected” exemption?

A: This exception has a criteria that the document is about a specific person, property, or account. Because an ILL document is not typically ABOUT that person, their property, or their account, it does not likely fall under the exception.

However, it is up to your legal experts to interpret this exception and whether it applies to ILL library services. Clarity is not expected until after the deadline and a library goes through a complaint investigation or lawsuit to set precedence.

Q. Are libraries expected to make all requested interlibrary loan items accessible, or can this be done on an on-demand/as needed basis? Such as with a checkbox on the request form inquiring whether accessibility is desired.

A: Because ILL is a service offered by the library as a part of its activities, programs, and services, it's not likely materials going through ILL will meet any exception.

If considering the secure individualized electronic document exception, these scans are not about a person or their account and so will not likely fall under that exception.

It is up to your legal experts to determine how to apply this exception to interlibrary loan, and if offering remediation upon request is sufficient to address any accessibility requirements.

Q. As interlibrary loan is a shared-library activity — who has the liability for making the scanned items accessible? The borrowing library, the library who lent the scanned item, or both?

A: The library that is providing the service to the patron. So, if library A's patron wants a document, it's library A's responsibility to provide access to an accessible version of the file.

That could be accomplished by requiring that the lending institution make it accessible, or library A might have an internal process to verify and remediate accessibility of an incoming document. This is similar to the third party exception in that the third party isn't taking on the risk, the library that is using the service is.

Q. When we encounter a copyrighted electronic document that requires remediation, are we legally allowed to remediate?

For example, in situations where we: 1) cannot identify an “eligible person” as defined in the Chafee Amendment of the Copyright Act that allows libraries to reproduce copyrighted work in accessible formats; and 2) do not currently have a contractual agreement to do so? Will this rule bring any new copyright concerns?

A: "1) US Copyright law does not require libraries to identify a specific “eligible person” in order to remediate a copyrighted electronic document. Under Section 121 of the US Copyright Act, libraries are free to prepare accessible versions of works that are likely to be in demand, even if an “eligible person” does not request an accessible version of that work. In fact, the updated ADA Title II regulations strengthen the case for libraries to anticipate that people with disabilities will need accessible versions of library resources that are most widely and consistently used.

2) A library can remediate works even if there is no contractual agreement to do so. This rule does not raise any new copyright concerns."

Q: What are people currently thinking about digital collections content that is newly added to online repositories?

For example, a new digitization project. For post 2026 - would that need to be made fully accessible before putting it online or does it also meet the definition of archived content?

A: That would depend on the date of the original publication. If it’s a 2010 paper digitized in 2028, it would be exempt because the original date is 2010. If it’s a July 2026 paper being scanned in 2028, it would need to be accessible. However, if the 2010 paper is being used in something new such as a course or service, it needs to be remediated. Because historic content will eventually include content past the (June 2026 or 2027) deadline, establish accessibility best practices as soon as possible.

The exceptions in relation to library situations are to help prioritize content. Libraries should consider eventually addressing all of it as access to information for everyone is a core foundation, but the exceptions help focus on what needs to be done first.