Video captioning for the deaf or hard of hearing has become more common since the turn of the century. The copyright owners of some of this video programming are taking increasing responsibility for captioning the videos, due in part to regulations from the US Federal Communications Commission (FCC) and the Department of Justice (DOJ), as well as enforcement through private lawsuits.
However, captioning occurs primarily in the broadcast, cable, and satellite programming settings, and is much less frequent for Internet programming. This leaves many third parties wishing to fill the void by adding captioning to programming provided over the Internet, but what are the legal limits and conflicts of this practice?
Blake Reid, an assistant clinical professor at Colorado Law School, published a policy white paper in early 2014 called “Third Party Captioning and Copyright” in partnership with the Global Initiative for Inclusive Information and Communication Technologies (G3ict). As the title suggests, the white paper describes the current state of third-party captioning of Internet video programming and its intersection and conflicts with copyright law. Reid explains, “Well-meaning third-party captioners striving to improve video accessibility face potential liability for infringing the copyright of video creators.”1 However, knowing the regulations and laws that apply to captioning video programming, and how adding captions as a third party may conflict with copyright law, may provide avenues for avoiding or resolving these conflicts.
Telecommunications law, enforced by the FCC, and general accessibility law, enforced by DOJ and private lawsuits, cover video programming in the following contexts: when delivered by broadcast, cable, satellite, and the Internet; the equipment and software used to view that programming; and video provided by places of public accommodation and entities receiving federal funding, including libraries. While telecommunications law has limited Internet captioning regulations, usually “covering only programming that has been shown on television with captions,” DOJ has read the Americans with Disabilities Act to cover websites, and thus programming delivered through those websites. The holes left between these laws and regulations gives rise to the need for third-party captioners:
From schools and libraries to families and friends of people who are deaf and hard of hearing to Internet video distributors, third parties are increasingly interested in adding captions to video programming to which they don’t hold the copyright.2
Despite these legal protections, there are conflicts that can arise between third-party captioners and copyright law. As Reid points out, “third-party captioners can safely assume as a general rule that a significant proportion of the video programming they handle is subject to active copyright protection.”3 This protection can manifest itself in three forms: the two exclusive rights of copyright holders in video programming—the right to prepare a derivative work and the right to reproduce the work—as well as Digital Millennium Copyright Act (DMCA) concerns.
The US Constitution states that creators of a work may enjoy a limited monopoly on that work in exchange for creating and sharing the work with the public. These rights revolve around copying of the work by the copyright holder, as well as authorization of others to copy the work. One of the exclusive rights implicated is the “adaptation” right, or the right to prepare derivative works based on the original work. A court would likely conclude that captions are inextricably tied to the source material of the underlying video program, and creating captions would then be considered a derivative or adaptation of the original. The other exclusive right implicated is the reproduction right. The verbatim transcription required to create captions is in essence a reproduction of the audible components of the underlying video.
Additionally, copyright law is implicated through the anti-circumvention provisions of the DMCA. Most video programming is distributed with some form of encryption or digital rights management, the circumvention of which is barred by the DMCA. Adding captions to a video may require circumvention of these technological protection measures, and the tools required to do so may potentially be illegal, raising additional liability.
The substantial overlap of exclusive rights afforded by copyright law, as well as the compounded liability that could result due to a single act of captioning a video seems daunting enough to deter third parties from captioning video programming.
Despite this bleak picture, there are some work-arounds that may help parties interested in captioning Internet programming avoid liability. These work-arounds can be categorized either as contract work-arounds, or statutory exemptions.
A third party that is interested in captioning a video could address any copyright tensions by making an explicit licensing arrangement with the rightsholder. This is a situation that usually arises when the third-party captioner is a video distributor that is already contracting with the rightsholder, and is well positioned to include liability concerns within the contract. Another contract method is to include copyright clauses within terms of service agreements, which is common among Internet video providers that allow individuals to upload their video programming. Some of these Internet video providers, like YouTube, even include tools for the user to create captions for their video programming. Finally, a rightsholder may make programming available through a permissive license, like a Creative Commons license, allowing captions to be created and delivered with the video without fear of liability.
While Congress has never explicitly dealt with the tension between captioning mandates and copyright law, there are various limitations and exceptions to copyright law that may apply. The Chafee Amendment to the Copyright Act allows authorized entities to reproduce and distribute copyrighted literary works in specialized formats for the blind or visually impaired. While this does not cover captioning for the deaf or hard of hearing, an argument could be made that the spirit of the amendment allows for third-party captioning. There are many other limitations that could be broadly construed to exempt captioning activities under certain circumstances, including sections 110, 111, 112, 119, and 122 of the Copyright Act. Section 108 particularly applies to certain reproductions and distributions of copyrighted works made by libraries and archives.
The most flexible of the statutory exemptions and limitations is the fair use doctrine. If the four factors of the doctrine lend support for a use of a copyrighted work, then it is excluded from the scope of copyright infringement. The Supreme Court and several lower courts have alluded to the fairness of accessibility efforts contained within the legislative history of the Copyright Act, and that,
most third-party captioning—at least captioning undertaken strictly for accessibility purposes—constitutes non-infringing fair use.4
It is worth mentioning that there is no explicit fair use accommodation in the DMCA, and that a third-party captioner that would otherwise be protected by fair use who needs to circumvent a technological protection measure to caption programming may still face liability under the DMCA.
Reid calls for Congressional action to further clarify, or even create an explicit exemption for, third-party captioning activities. While this may be possible with the current review of the Copyright Act being undertaken by the House Judiciary Committee, in the meantime it is important for libraries to remain vigilant in providing programming for users of all abilities, not only successfully, but also in a way that will not implicate copyright liability.
Caile Morris is a law and policy fellow with the Association of Research Libraries. She has served in this position since her graduation from American University Washington College of Law in 2015, working primarily on issues of intellectual property law and accessibility.