Licensing as a tool for accessibility

In this Section:

Why licensing is a critical tool

The Department of Justice (DOJ) clarified that the requirements apply to content that “the public entity provides or makes available, directly or through contractual, licensing, or other arrangements.”

Under the Title II regulations, public institutions are responsible for the accessibility of content, even if the content is provided by a third party under a licensing or contractual arrangement. A private vendor is not covered by ADA Title II so does not bear the responsibility of accessible content. The public entity purchasing or subscribing must ensure it is making available accessible content.

Negotiating for accessible licensed content is a proactive approach that libraries need to take to provide accessible content, comply with their legal obligations, and hold vendors accountable.

Note: The European Accessibility Act (EAA) is a standard that may affect many vendors libraries work with. If a private vendor has clients in the EU, they may be subject to laws that require WCAG 2.1 Level AA by June 2025. This may be an advantage for U.S. libraries during negotiations.

Licensing accessible content

The DOJ expressly stated that the anticipated result of this new ruling will be more accessible licensed content.

UC Berkeley Library is already moving the scholarly publishing industry toward born-accessible standards by working with vendors that specifically promise to provide accessible materials in their agreement with the Library. Licensing more born-accessible content – content that is already accessible when the library receives it – reduces the need to make accessibility modifications after the fact or seek an exception for undue burden.

This strategy also helps the university avoid liability, as the license agreements establish that it is the vendor’s responsibility first and foremost to provide accessible materials, and that the library is not purchasing non-accessible materials.

UC Berkeley Library’s strategy for acquiring born-accessible materials includes:

  • VPAT or ACR: Libraries often ask distributors or publishers and distributors or aggregators to submit and keep current a Voluntary Product Accessibility Template (VPAT), also known as an Accessibility Compliance Report (ACR) when filled out. In an ACR, the distributor or publisher explains how their technology, content, and documentation satisfy Federal standards for accessibility. UC Berkeley Library uses them to help ensure their resources are accessible when the library receives them.
  • Warranty: The Library asks publishers to warrant in license agreements that they comply with applicable Federal and state accessibility laws, and satisfy WCAG 2.1 AA guidelines. The Library also asks for a representation that the vendor will make reasonable efforts to solve any accessibility complaints that do arise, and provide the library with accessible versions of materials on demand once issues are resolved.

Sample contract language

Sample warranty language: “Licensor warrants that the Licensed Materials comply with California and federal disabilities laws and regulations, and conform to the accessibility requirements of Web Accessibility Initiative, Web Content Accessibility Guidelines (WCAG) 2.1 at level AA.  Licensor agrees to promptly respond to and resolve any complaint regarding accessibility of Licensed Materials.”

Disclaimer: The warranty disclaimer section of the contract typically includes language that says the vendor disclaims all warranties and provides the licensed materials as is. Berkeley Library adds language that prohibits the vendor from disclaiming the accessibility warrant that they just provided by adding “except with respect to express warranties” in front of those statements.

Sample disclaimer language: “Except with respect to any express warranties, Licensor disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Licensed Materials or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability, or fitness for a particular purpose.”

Indemnification

In the indemnification section, the contract usually includes language like “the vendor shall not be held liable for any damages.” Berkeley Library amends that to read “except with respect to express warranties,” vendors shall not be held liable for any damages. By adding this, if the University gets sued based on accessibility claims, then there are already contractual terms established that would offer some protection to the University. Remember, though, that an entity cannot fully indemnify itself from its legal obligations under the ADA..  This can still help the university with potential PR issues that would arise from an accessibility lawsuit, as the library can point to our efforts to work with vendors that have specifically promised to provide accessible materials when we entered the agreement.

Sample indemnification language: “Except with respect to any express warranties, neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, that arises from the use of the Licensed Materials, or the inability to use the Licensed Materials.

US copyright law provides libraries broad latitude to make and share accessible texts. If terms in some licenses or contracts prohibit such work (directly or indirectly), it is critical that libraries renegotiate those contracts, and communicate with those vendors that they might not be ADA compliant.

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Frequently Asked Questions

Q. Libraries frequently license third-party research databases that are full of pre-existing PDFs, such as older academic journals and magazine articles. How does this exemption apply or not apply to the PDF content within these licensed databases?

Does all content need to be accessible because the materials are being offered for library research, does compliance pick up with the documents created after the deadline, or is it dependent on the type of document or the document’s use?

A: Because this is third party content the library has through a license, subscription, or agreement, the most relevant exception is the 3rd regarding third party content. This content does not fall under an exception. If they were the library's PDFs (e.g. outdated policy documents or flyers from past events), you could consider the 2nd exception for pre-existing conventional electronic documents (see the criteria for that), but the library's agreement to receive access to the content means it needs to be addressed. 

It's possible to, where an HTML version is available, point to the HTML as the primary source and the PDF a print alternative. The HTML version would need to meet WCAG 2.1 Level AA guidelines, and the PDF will also likely still need to meet WCAG 2.1 Level AA; however, in this scenario we may be able to lower the priority of the issue.

Q. Are vendors legally required to provide accessible materials?

Do you have any best practices or tips for ensuring that vendors provide accessible resources and materials?

A: If the vendor is a public entity, yes, it also has a legal requirement to provide accessible materials. If it’s a private vendor, the public entity will bear the responsibility of ensuring all the content it creates, purchases, or subscribes to meets accessibility requirements.

The first step to ensuring accessible vendor content is to negotiate it in the contract, requesting documentation and support. Please review the steps the University of California Berkeley has taken to negotiate with vendors.

Q. Libraries frequently link to offsite websites and PDFs as resources in research guides on their library websites. Are libraries responsible for accessibility for these sites?

A: Does the public entity (e.g. the library) have an agreement, contract, or subscription with the owner of the website? If so, it may need to meet accessibility requirements. 

If the link is to a website that the public entity has no relationship with, and the content is not necessary to engage with services, activities, or programs of the library (or its university in an academic setting), the accessibility of the third party website may not be required to meet WCAG 2.1 Level AA.

Regardless, libraries need to be accountable in finding the most accessible content.

A few examples: A LibGuide for a public university library with database tutorials. The guide itself must be accessible. If it links to a PDF version of a how-to guide, it may need to be accessible as it is content to help engage with a service. If that PDF is on the vendor’s website, it’s more likely necessary as a relationship (contract or subscription) exists between the two entities. If the PDF is from another public university, it should already be accessible based on their own accessibility requirements. If it is from a private university, the library may reach out to request an accessible version be made available or request permission to update it.

Q. What is the library’s role in ensuring third-party vendors we contract with for library content are compliant?

Where do the responsibilities of content vendors end and the library's begin? What teeth do libraries have to force compliance on vendors and publishers?

A: For private vendors, the responsibility lies mostly if not solely on the library. ADA Title II applies to public entities, not private ones.

This will require libraries to reflect on its vendor relationships. Contracts will need to be renegotiated, and libraries need to verify the accessibility of the products it purchases or subscribes to.They should also implement processes for addressing accessibility issues or complaints.

Q. If a third-party vendor is not 100% compliant by the deadline, but their database is best-of-class for its content, what options does the library have at the deadline?

For instance, if a college academic department requires a database for accreditation. Does a library have to drop the database or are there provisions to allow its continued use? How should libraries approach sole source vendors whose content is not WCAG conformant?

A: It’s critical to begin the contract renegotiation process to include accessibility requirements as soon as possible and document all efforts to do so.

If sufficient progress is not possible by the deadline for a vendor product that is required for the mission of the public entity, an undue administrative burden or fundamental alteration exception request needs to be documented by the university or parent entity. 

With these exceptions, the public entity is still required to make content accessible to the greatest extent possible and to provide timely remediation upon request.

Q. Does the content we buy/license through foreign vendors need to comply?

For instance, an academic library licensing international material to support a foreign languages program at the university?

A: Yes. ADA Title II is based on U.S. public entities, and it is the U.S. public entity that is responsible for providing access to accessible content. This requirement holds regardless of where the content is coming from.