Copyright! My favorite! It is the most commonly relied upon, and least understood, intellectual property right that we have in the US. Everyone thinks that copyright law defends any and all uses of digital media, and that once you buy something (or, heck, rip it online), it's yours.
(Sidebar: NO! It's not! You cannot "borrow" music files from ZenMaster201! You cannot rip your own ringtones! Fair use is a BAD defense!!!)
Ok, let's back up, now that I've gotten that out of my system. For our purposes, here's a very brief summary of copyright law: The author of a original work is entitled to the copyright rights for that work - the right to reproduce, modify, create derivative works, distribute, and publicly perform the work. These rights arise from the creation of the work (you don't necessarily have to register the work, or file it, like you would for a patent or federal trademark). No one can modify your work without a license from you, unless they have a defense. "Fair use" is such a defense - this is essentially the right to quote an article, or to parody a song, or to make scholarly comment on a book. It helps your case if you're not commercially profiting from your use of the copyrighted work, and if your use of the work is small in comparison to the work as a whole.
Here's the issue: True web accessibility will require some mechanism to render websites available to a person with disabilities. The NY Times website is not, in its current form, accessible to an individual with a vision impairment. But, that individual can use a screen reader that will literally read an article out loud (the difficulty, and the source of much effort in the developer community, is that the text needs to be readable by the screen reader and images will need captions that can be read by the tool). A person with mobility issues may be unable to "check the box", and instead will need to indicate yes or no through other means. An individual with cognitive impairments will ideally have complicated text simplified.
Depending on how these tools interact with the website (e.g., whether they are built-in, or are after-market add ons managed by the end user), each of those situations could constitute a copyright violation. Because the owner of the website material (e.g., the NY Times company) owns the copyright, and thus the right to make and manage derivative works, modified text via after-market add ons would be a violation. Now, perhaps this problem could be managed, maybe via contract law - the NY Times could license the right to make derivative works for certain purposes. The problem is that there's nothing to require the NY Times company to issue such licenses (or do it themselves). There's no exception in copyright law that contemplates this type of derivative work.
Copyright law is yet another one of those areas of law where there's a significant gap between the law, as written, and technology, as developed. Congress is perpetually behind the times in drafting updates and revisions to copyright law. For example, there are entire sections in the Copyright Act dealing with phonographs, and "coin-operated phonorecord players". But, the Copyright Act hasn't been significantly updated since 1998, in part because changes to the law end up being controversial and rife with industry politics. Caselaw in this area is a mess, and this is definitely an area where bad facts make bad law. So the Copyright Act is poorly equipped to respond to the challenge of web accessibility.
I actually have no answer to this problem! If this were a law school exam question, and I had to come up with a solution, I guess I would say (a) it depends (that's a lawyer joke, I know, not very funny); (b) Congress needs to either create an exception to the derivative work right for such works specifically designed to make web materials accessible, or, needs to require creators of web materials to license such rights to third parties upon request for reasonable royalty rates; or (c) require creators of web materials to render their material accessible for a range of individuals with disabilities. I think that (b) is probably the best option for the market - it doesn't place an undue burden on the website creator, and also incentives third parties to enter into the market and create options for individuals with disabilities.
Your thoughts?
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