how copyright law and fair use impact third party captioning
TRANSCRIPT
How Copyright and Fair Use Impact Third-Party Captioning
for Educational VideoBlake Reid
Assistant Clinical Professor, Colorado Law
April 2, 2015 3PlayMedia
Disclaimer
• I am a lawyer, but not your lawyer.
• If this were advice, it would be accompanied by a bill!
• Opinions = my own
Scenario:Adding captions to a video to be used in class
Scenario:(similar analysis and results for video description and
alternate formats of books)
Key takeaway: caption it!
Key takeaway: caption it!
(it’s arguably fair use)
Key takeaway: caption it!
(but fair use is complicated, so make sure university counsel has your back)
Questions:• Should I caption the video? (Why?)
• Is the video copyrighted?
• Does someone else hold the copyright?
• If it is, can you get permission? (Easily?)
• If you can’t, does captioning infringe the copyright holder’s exclusive rights?
• If so, are there any defenses?
Questions:• Should I caption the video? (Why?)
• Is the video copyrighted?
• Does someone else hold the copyright?
• If it is, can you get permission? (Easily?)
• If you can’t, does captioning infringe the copyright holder’s exclusive rights?
• If so, are there any defenses?
Why caption?• Federal disability law
• Americans with Disabilities Act
• Rehabilitation Act of 1973, IDEA, etc.
• Federal telecommunications law and regulations
• Telecommunications Act of 1996
• Twenty-First Century Communications and Video Accessibility Act
• State law
Why caption?
• Obligations are very serious
• See National Association of the Deaf lawsuits against Harvard and MIT
Why caption?
• It’s the right thing to do!
• Students with disabilities have a civil right to access education on equal terms
Questions:• Should I caption the video? (Why?)
• Is the video copyrighted?
• Does someone else hold the copyright?
• If it is, can you get permission? (Easily?)
• If you can’t, does captioning infringe the copyright holder’s exclusive rights?
• If so, are there any defenses?
Questions:• Should I caption the video? (Why?)
• Is the video copyrighted?
• Does someone else hold the copyright?
• If it is, can you get permission? (Easily?)
• If you can’t, does captioning infringe the copyright holder’s exclusive rights?
• If so, are there any defenses?
Is the video copyrighted?
• Most contemporary videos and sound recordings protected by ©
• Copyright vests automatically—no need to register!
Is the video copyrighted?
• Exception: the public domain
• But, complicated to determine
By Wikipedia user Jappalng—CC BY-SA 3.0 http://en.wikipedia.org/wiki/Wikipedia:Public_domain#/media/File:PD-US_table.svg
Is the video copyrighted?
• Consider using public domain calculators:
• http://www.publicdomainsherpa.com/calculator.html
• http://www.limitedtimes.com
Is the video copyrighted?
• But in most cases (especially within last decade or two), probably safe to assume ©
Questions:• Should I caption the video? (Why?)
• Is the video copyrighted?
• Does someone else hold the copyright?
• If it is, can you get permission? (Easily?)
• If you can’t, does captioning infringe the copyright holder’s exclusive rights?
• If so, are there any defenses?
Questions:• Should I caption the video? (Why?)
• Is the video copyrighted?
• Does someone else hold the copyright?
• If it is, can you get permission? (Easily?)
• If you can’t, does captioning infringe the copyright holder’s exclusive rights?
• If so, are there any defenses?
Does someone else own the copyright?
• Was the video was created by university faculty, staff, or students?
• If so, university may hold the copyright
• Complicated—check university IP policy
• Or, may automatically receive a license
Questions:• Should I caption the video? (Why?)
• Is the video copyrighted?
• Does someone else hold the copyright?
• If it is, can you get permission? (Easily?)
• If you can’t, does captioning infringe the copyright holder’s exclusive rights?
• If so, are there any defenses?
Questions:• Should I caption the video? (Why?)
• Is the video copyrighted?
• Does someone else hold the copyright?
• If it is, can you get permission? (Easily?)
• If you can’t, does captioning infringe the copyright holder’s exclusive rights?
• If so, are there any defenses?
Can you get permission?
• No copyright problem if you get permission (i.e., a license)
• Should be especially easy (or even implied) w/faculty/staff/students
• Some copyright holders may oblige
Can you get permission?
• If copyright holder won’t oblige, why not?
• Do they already make the video available in an accessible form?
• If not, may aid in fair use analysis.
• If so, why are you trying to recaption?
Can you get permission?
• May be impractical to get permission, e.g.:
• Can’t identify copyright holder
• Multiple copyright holders
• Trying to caption a library of videos
Questions:• Should I caption the video? (Why?)
• Is the video copyrighted?
• Does someone else hold the copyright?
• If it is, can you get permission? (Easily?)
• If you can’t, does captioning infringe the copyright holder’s exclusive rights?
• If so, are there any defenses?
Questions:• Should I caption the video? (Why?)
• Is the video copyrighted?
• Does someone else hold the copyright?
• If it is, can you get permission? (Easily?)
• If you can’t, does captioning infringe the copyright holder’s exclusive rights?
• If so, are there any defenses?
Does captioning infringe exclusive rights?
• Copyright is limited in scope
• Several exclusive rights for video
• Reproduction (copying)
• Adaptation (derivative works)
• Distribution
• Public performance
Does captioning infringe exclusive rights?
• Which right(s) are implicated is complex, but…
• May implicate one or more
• But, stay tuned for defenses! Implication ≠ liability.
Questions:• Should I caption the video? (Why?)
• Is the video copyrighted?
• Does someone else hold the copyright?
• If it is, can you get permission? (Easily?)
• If you can’t, does captioning infringe the copyright holder’s exclusive rights?
• If so, are there any defenses?
Questions:• Should I caption the video? (Why?)
• Is the video copyrighted?
• Does someone else hold the copyright?
• If it is, can you get permission? (Easily?)
• If you can’t, does captioning infringe the copyright holder’s exclusive rights?
• If so, are there any defenses?
Defenses
• No accessibility-specific exemption or limitation in U.S. law for video
• Chafee Amendment limits exclusive rights, but only for certain types of books, entities, and disabilities
Defenses
• Some exemptions and limitations available for schools and libraries
• Complex/applicability to captions unclear
Defenses
• Fair use saves the day
• Don’t need permission!
• Doesn’t matter which rights, if any, captioning implicates!
• But, big caveat:
“[F]air use in America simply means the right to hire a lawyer . . .”
-Larry Lessig
Defenses: Fair Use
• Downside: not a sure thing
• No case directly on point for captions
Defenses: Fair Use
• But, a very strong case to be made
• (This is why you need university counsel on your side!)
Defenses: Fair Use
• Teaching is an exemplary fair use in the Copyright Act:
• “The fair use of a copyrighted work . . . for purposes such as . . . teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
Defenses: Fair Use
• Accessibility is also cited as an exemplary fair use in the Copyright Act’s legislative history:
• “[T]he making of [alternate format books for people who are blind or visually impaired] as a free service for a blind persons would properly be considered a fair use . . . .”
Defenses: Fair Use
• The Supreme Court agrees:
• “Making a copy of a copyrighted work for the convenience of a blind person is expressly identified by the [legislative history] as an example of fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying.”
Defenses: Fair Use
• Authors Guild v. HathiTrust (2d. Circuit 2014)
• Held digitization of 10 million+ books stored across 80 member institutions for accessibility purposes (among other things) = fair use
Defenses: Fair Use
• Though cases and legislative history cite to making books accessible, strong analogy to movies
Defenses: Fair Use• Fair use is a multifactor test; most important
factors are:
• (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
• (4) the effect of the use upon the potential market for or value of the copyrighted work
Defenses: Fair Use• First factor: purpose and character of use
• Under HathiTrust, accessibility purposes are fair (even though not transformative)
• Supreme Court agreement
• Legislative history
• Existence of Americans with Disabilities Act and Chafee Amendment
Defenses: Fair Use• Fourth factor: effect on the market
• Generally not a market copyright holders are interested in serving
• For video: easy to show when copyright holder expressly declines to provide captioning
• Can probably be inferred if video doesn’t come with captions
• Arguably still the case if existing captions are not of sufficient quality to meet accessibility obligations
Defenses: Fair Use
• Long story short: strong argument for fair use!
Defenses: Fair Use
• One caveat: anti-circumvention liability under Section 1201 of the Digital Millennium Copyright Act (DMCA)
• Do you have to break DRM?
• If so, circuit split on whether fair use applies
• Exemption process at U.S. Copyright Office
Questions?
