Challenges of captioning and copyrights

Thursday, 26 June 2014 13:34pm

Media Access Australia spoke to Blake E. Reid, Assistant Clinical Professor at Colorado Law, following his chairing of a session at the M-Enabling Summit on copyright and third party captioning.

The session at M-Enabling covered issues such as the proliferation of inaccessible video content, the need for third party captioning, and the dangers of captioning infringing on the copyrights of audio-visual content owners.

What are the major issues associated with third-party captions?

Blake E. Reid: In an ideal world, the creators of videos would always include captions and descriptions to ensure that people with disabilities could access them on equal terms. This would mean treating captions and descriptions with the same care and attention given to the audio and visual content in a video.

For a variety of reasons, this doesn't always (or in the case of description, often) happen; videos regularly make it onto the internet and other distribution channels without captions or description. In those situations, it'd be ideal if a third party—i.e., someone other than the holder of the copyright in the video—could add the captions or description after the fact. The simplest example to think about is sitting next to a friend who is blind or visually impaired and describing what's happening on the screen.

In some cases, third-party captioning is even required by law—for example, in the US, broadcast, cable and satellite companies are legally responsible for ensuring that most of the video they distribute is captioned under telecommunications law, and internet distributors may be similarly responsible under disability law. It's also easy to imagine situations where a third-party might want to add captions or descriptions voluntarily—for example, a family member or friend of a person with a disability or a volunteer for a crowdsourcing platform might want to personally add captions or descriptions to a program.

The wrinkle, however, is that most videos are copyrighted, which gives the copyright holder a variety of exclusive rights in the video, including the right to reproduce and adapt the video. The details are complicated, but it's possible that captions and descriptions qualify as reproductions or adaptations. Thus, third-party captioners and describers face potential liability under copyright law.

How do these issues hinder the provision of captions?

In practice, this happens in a couple of ways. The obvious one is that would-be third-party captioners and describers might not want to incur legal liability for creating captions or descriptions, and as a result might not undertake voluntary efforts that they might otherwise. Relatedly, copyright liability might chill the development of platforms and tools to facilitate third-party copyright, such as crowdsourcing technology.

One not-so-obvious one is that distributors of video programming sometimes invoke copyright arguments as a reason to avoid the application of disability laws. In other words, they aim to avoid accessibility obligations by arguing that the obligations would turn them into copyright infringers. Also, copyright holders will sometimes argue that copyright gives them the right not to caption or describe a video. (I think this is a particularly bad argument, but that doesn't stop folks from making it.)

How can these issues be overcome?

Ideally, policymakers would make changes to copyright law to expressly permit captioning, description and other accessible transformations. Some countries, like the UK, are already addressing these issues. We're further behind in the US.

Are there workarounds to access captions for TV and film content?

In the US, there's the doctrine of fair use, which treats certain types of uses of copyrighted works as non-infringing. While no court has expressly addressed the fairness of captioning and description, the recent HathiTrust decision [PDF 388KB] in the US (treating the creation of alternative format versions of books for people who are blind or print disabled as fair) offers very strong support for the proposition that captioning and description are fair uses. It's not a perfect solution by any means, but it should give some legal cover to some third parties who are thinking about doing captioning and description.

There's also the possibility of addressing captioning and description via contract. If video copyright holders distribute their videos under certain types of Creative Commons and similar licenses, they can proactively give folks permission to caption and description later. Alternatively, video distribution platforms can include caption and description permission clauses in their terms of service and user agreements. Lastly, third-party captioners can negotiate directly with copyright holders, though this obviously isn't practical in many cases.

Final thoughts on captioning challenges and solutions?

Only that captioning and description are critical tools for people with disabilities to participate in an information economy on equal terms. Addressing the underlying copyright issues is going to be critical as the video programming marketplace evolves.

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