Legal Aspects of Captioning for Higher Ed Gaeir Dietrich Director, High Tech Center Training Unit .

Legal Aspects of Captioning for Higher Ed

Gaeir DietrichDirector, High Tech Center Training Unitwww.htctu.net

Laws Requiring Captions

FCC: Federal Communications Commission– Governs airwaves– Laws apply to broadcasters and to programs

originally captioned uploaded to Internet ADA

– Requires government PSAs be caption Section 508

– Requires captioning of videos– Applies to federal government

Why caption?

Most colleges are captioning when a student who requires captions requests them

In other words, it is an accommodation

ACCESS VS. ACCOMMODATION

Federal Laws

ADAAA (Americans with Disabilities Act as Amended)– Title II (public colleges/universities)– Title III (private colleges/universities)

Rehabilitation Act– Section 504 – Section 508

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ADA & Section 504

Accommodation model– i.e., if it doesn’t work for a student fix it for

that student

Auxiliary aids and services are provided to allow full participation by disabled student

Both laws very similar in this area

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Section 508

Part of Rehabilitation Act of 1973, as amended in 1998

Section 508 standards added in 2001

As written it applies only to the federal government

Does 508 apply to you?

Some states have adopted the Section 508 Standards– http://accessibility.gtri.gatech.edu/sitid/

stateLawAtGlance.php Even if Section 508 does not apply directly,

it should still be considered best practice to ensure an equally effective experience for all students

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Section 504 vs. Section 508

Section 504 addresses individuals’ needs for auxiliary aids and services (accommodations).

Section 508 addresses the infrastructure that allows access.

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Rehabilitation Act of 1973 Section 504 is about accommodation.

– Making it work for individuals– Disability service offices created to serve

students’ needs. Section 508 is about access.

– Create accessible software, Web sites, videos, and documents.

– Purchase accessible products.– Campuswide responsibility

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A Campus Analogy

Section 504– Deaf student requests that videos for her class

be captioned

Section 508– New videos must be captioned before being

shown in the classroom for the first time

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United We Stand

Access and accommodation work together– It’s a continuum

Not fully accessible? Accommodate.

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Access vs. Accommodation

Access

Accommodation

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Applying This to Videos

The campus buys captioned materials when possible

When not possible, ordering department pays for captioning before the video is used

AND Individual accommodations may still be required

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COPYRIGHTBut what about…

Introducing: COPYRIGHT

Section 106 of title 17, United States Code, as amended in 1995 and 2002

§ 106 · Exclusive rights in copyrighted works

Five Fundamental Rights

Copyright law gives the copyright owner five fundamental, exclusive rights – Reproduction– Adaptation– Publication– Performance – Display

The Copyright Act Which means that without permission we

CANNOT– Reproduce…– Adapt…– Publish…– Perform…– Display… – Their works!

AND we cannot do so until copyright runs out!

1976 Amendments to the U.S. Copyright Act General Rule

– “[F]or works created on or after January 1, 1978, copyright protection endures for the period of the life of the author plus 70 years. See generally 17 U.S.C. §§ 301-305.*”

• AIM Commission Report• *Complete text found in Section 106 of title 17,

United States Code, as amended in 1995 and 2002

Is This Fair? Stanford Law School, The Center for Internet

and Society Fair(y) Use Tale

– “Professor Eric Faden of Bucknell University created this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms.” –CIS Web site

http://cyberlaw.stanford.edu/blog/2007/03/fairy-use-tale

Exceptions Written into the Copyright Act, Chapter 17

of the U.S. Code, as amended in 1987– “Fair use” – based on existing court doctrine

now Section 107 of the Copyright Act– TEACH Act: Technology, Education, and

Copyright Harmonization Act of 2002 • Mediated instructional activities transmitted via

digital networks

Fair Use

Is a defensive argument under the law– Affirmative defense

Does not give specific direction of how works can or cannot be used

Allows one to argue that the usage should be considered fair because…

“Fair Use”: Four Factors

A fair use analysis requires the court to balance at least four factors set forth in the statute: – purpose and character of the use,– nature of the copyrighted “work” [book, thesis,

article, etc.],– amount and substantiality of the portion used,

and– effect upon the market for the copyrighted work

Fair Use

Fair Use is not a law but an argument under the law

For video captioning– For educational purposes—in favor– Nonfiction works—often in favor, but dramatic

works more protected– Making a complete copy—not in favor– If no economic impact—in favor

Bottom Line

If you are not impacting the copyright owner’s income or potential for income from their work, you are probably pretty safe

TEACH Act

The Technology, Education, and Copyright Harmonization (TEACH) Act– November 2, 2002

Instructors may use a wider range of works in distance learning environments

Greater latitude when it comes to storing, copying and digitizing materials

TEACH and Media

Part of mediated instructional activities Specific students enrolled in a specific class Either 'live' or asynchronous class sessions. "reasonable and limited portions," such as

might be used in live classroom session, develop and publiciz its copyright policies technological measures to ensure

compliance

But NOT

Transmission of textbook materials Electronic reserves, coursepacks (electronic

or paper) or interlibrary loan (ILL). Commercial document delivery. Conversion of materials from analog to

digital formats, except when for authorized transmissions and when a digital version of a work is unavailable or protected by technological measures

COPYRIGHT AND VIDEOS

Off-Air Taping

The U.S. Supreme Court has held that off-air taping by individuals for home use is legal in most cases. The same is not true for taping programs for use in a classroom setting. The use of off-air taped materials by teachers is permitted, under the "fair use" concept, only under certain restricted conditions. See "Fair use" in off-air videotaping: the Kastenmeier guidelines.

Kastenmeier Guidelines

http://librarycopyright.net/resources/fairuse/guidelines.php

created by an Ad Hoc Committee (see House Report 2223 [H.R. 2223])

Do not have the force of law, HOWEVER, they have been cited by the courts in a number of copyright cases

apply to off-air recording by non-profit educational institutions

Kastenmeier In a Nutshell

Retained for a period not to exceed the first forty-five (45) consecutive calendar days after the date of recording

Used once and repeated once only when instructional reinforcement is necessary

Must include the copyright notice on the broadcast program as recorded

By the Way

Programs videotaped from TV will have the captions there EVEN if they were not turned on during taping

Recording to DVD varies

Other Guidance

Center for Media and Social Impact http://www.cmsimpact.org/fair-use/

related-materials/codes/code-best-practices-fair-use-media-literacy-education

VIDEOS AND CAPTIONING

A Word about Captions

Always done in the language spoken in the video– Spanish language videos would be captioned in

Spanish, not English– Subtitles not the same, but often will do

Include all auditory content, not just speech– Slamming doors, barking dogs, laughter, etc.

are all included in text descriptionswww.htctu.net 36

Be Aware

Closed captions are turned on and off with a “decoder”

Televisions (since the ‘80s) have decoders built in; not all overhead projectors do– Epson, Panasonic, Smart make projectors with

decoders External decoders can be purchased

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Captioning In-depth under 508

“Raw footage” exempt– Single use, restricted use, not archived

Restricted access materials– If no users require captions, do not need

Transcripts– Not sufficient for video (must have

synchronized text and video)– Fine for audio-only podcasts

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You Tube

Yes, can be captioned May not need permission if you simply

stream words at the same time as the video– Subtitle Horse, Amara

If it is a single-use, accommodate as necessary, rather than providing access

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Podcasts

Audio only– A transcript is all that is needed

Audio and video– Synchronized captions required if it is public

access– Accommodation can be provided on request if

it is a restricted audience (i.e., locked inside LMS)

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Audio Description

508 does require it– Can be technically very challenging

However, only needed in order to make content clear– Can potentially be handled by other means

Suggest accommodate as needed

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Legal Issues

Unless your campus owns the copyright, get permission– To caption– To change format (VHS to DVD; DVD to Web)

Legal opinion from California Community Colleges Chancellor’s Office– www.htctu.net/divisions/altmedia/captioning/

cc/LO_M_02-22.pdf

M02-22: August 2,2002, CCCCO

Recommendations– Purchase captioned materials whenever

possible– Borrow captioned version through Interlibrary

Loan– Provide an alternate captioned video– Obtain permission to caption– Caption without permission

Captioning without Permission

Make an attempt to obtain permission– Repeat attempts (3 times?)– After repeated attempts, caption

Finding the copyright holder may not be possible– Document the attempt and caption

Can rely on Fair Use– Campus (or instructor) owns the video

And What IS Fair?

If you caption, only circulate the number of copies you OWN– If campus owns one copy, only circulate one

copy– Lock the other copy away

Remember, fair use does not smile upon you if you impact the copyright holder’s income from their IP

Copyright Holder Wants a Copy

Sometimes copyright holder says you can caption if you provide them a copy

Concern over a private gift of public funds… BUT…consider that this is the cost of

captioning charged by the copyright holder Yes, copyright holders CAN charge you to

caption

What If They Say “No”?

Accommodate the student May need to caption and then not retain

the captioned version

HOWEVER, keep you transcript and time-coded files for next time

Instructor-Owned Video

Work with your library! Caption Hold onto instructor video and loan them

the captioned video If they leave institution, they can get back

their version Your captioned version gets locked away

unless campus owns, as well

OR

Get instructor to sign documentation ensuring that they will not use the two copies independently

Then give them both copies

RESOURCES

Resources

Subtitle Horse– http://subtitle-horse.com/ – Captions and You Tube in a separate interface

Amara– http://amara.org/en/ – Similar plus uses crowd sourcing to caption

Captioning Key– http://www.dcmp.org/captioningkey/– Best practices on how to caption

Thank you!

Gaeir Dietrich 408-996-4636 [email protected] www.htctu.net

– High Tech Center Training Unit