This document summarizes the key considerations around adding captions to educational videos for accessibility purposes when the copyright is held by a third party. It notes that captioning is required by disability law but may implicate the copyright holder's exclusive rights. While permission is best, fair use provides a strong defense for nonprofit educational captioning given its transformative purpose of accessibility. The analysis balances relevant copyright concepts and defenses to conclude that captioning is justifiable under fair use, though legal counsel is recommended given fair use uncertainties.

3. How Copyright and Fair Use
Impact Third-Party Captioning
for Educational Video
Blake Reid
Assistant Clinical Professor, Colorado Law
April 2, 2015
3PlayMedia

4. Disclaimer
• I am a lawyer, but not your lawyer.
• If this were advice, it would be accompanied by
a bill!
• Opinions = my own

5. Scenario:
Adding captions to a video to be used in class

6. Scenario:
(similar analysis and results for video description and
alternate formats of books)

7. Key takeaway:
caption it!

8. Key takeaway:
caption it!
(it’s arguably fair use)

9. Key takeaway:
caption it!
(but fair use is complicated, so make sure university
counsel has your back)

10. 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?

11. 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?

12. 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

13. Why caption?
• Obligations are very serious
• See National Association of the Deaf lawsuits
against Harvard and MIT

14. Why caption?
• It’s the right thing to do!
• Students with disabilities have a civil right to
access education on equal terms

15. 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?

16. 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?

17. Is the video copyrighted?
• Most contemporary videos and sound
recordings protected by ©
• Copyright vests automatically—no need to
register!

18. Is the video copyrighted?
• Exception: the public domain
• But, complicated to determine

19. By Wikipedia user Jappalng—CC BY-SA 3.0
http://en.wikipedia.org/wiki/Wikipedia:Public_domain#/media/File:PD-US_table.svg

20. Is the video copyrighted?
• Consider using public domain calculators:
• http://www.publicdomainsherpa.com/
calculator.html
• http://www.limitedtimes.com

21. Is the video copyrighted?
• But in most cases (especially within last decade
or two), probably safe to assume ©

22. 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?

23. 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?

24. 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

25. 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?

26. 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?

27. 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

28. 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?

29. 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

30. 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?

31. 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?

32. Does captioning infringe
exclusive rights?
• Copyright is limited in scope
• Several exclusive rights for video
• Reproduction (copying)
• Adaptation (derivative works)
• Distribution
• Public performance

33. 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.

34. 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?

35. 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?

36. 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

37. Defenses
• Some exemptions and limitations available for
schools and libraries
• Complex/applicability to captions unclear

38. Defenses
• Fair use saves the day
• Don’t need permission!
• Doesn’t matter which rights, if any, captioning
implicates!
• But, big caveat:

39. “[F]air use in America simply means
the right to hire a lawyer . . .”
-Larry Lessig

40. Defenses: Fair Use
• Downside: not a sure thing
• No case directly on point for captions

41. Defenses: Fair Use
• But, a very strong case to be made
• (This is why you need university counsel on
your side!)

42. 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.”

43. 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 . . . .”

44. 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.”

45. 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

46. Defenses: Fair Use
• Though cases and legislative history cite to
making books accessible, strong analogy to
movies

47. 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

48. 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

49. 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

50. Defenses: Fair Use
• Long story short: strong argument for fair use!

51. 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

52. Randall Munroe, Copyright, xkcd, https://xkcd.com/14/

53. Questions?