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Copyright Law vs. Accessibility Law: Is It Fair Use to Caption Videos You Don’t Own?


    We recently hosted a webinar exploring copyright and fair use of captioning third-party educational video. The event featured legal expert Blake Reid, Assistant Clinical Professor in Technology Policy and Telecom Law at Colorado Law. Blake has worked on captioning regulations with deaf and hard of hearing interest groups and the FCC, earning a reputation for expertise in copyright law.

    Copyright and captioning are a major concern for educators. A poll of webinar participants revealed that, while only about a quarter of respondents encountered copyright issues with their captioned video, over half worried that they would run into trouble down the road.

    Have you experience an issue with copyright law in the course of making video accessible? 27% Yes; 10% No; 56% No, but I'm concerned that I will; 6% Not Sure.

    Part of their concern lies in not knowing exactly how copyright law applies to captioning educational video, what constitutes fair use, and how likely they are to be sued for adding captions. Blake gives a clear, informative presentation addressing those concerns (with the disclaimer that he’s “a lawyer, but not your lawyer,” so his talk does not constitute legal advice).

    Why Add Captions?

    “There’s a lot of good reasons to caption,” say Blake, “and one is that it’s the law.” He cites disability legislation like the Americans with Disabilities Act and the Rehabilitation Act, which frequently compel institutes of higher education to make their coursework fully accessible. Televised video is subject to the Telecommunications Act, and previously-televised web video must be captioned, according to the CVAA. Even if an organization isn’t covered by these federal laws, many states’ laws require closed captions to make video accessible.

    Blake emphasizes that colleges and universities should take accessibility law seriously, since it can and will be enforced. He points to the National Association of the Deaf’s lawsuit against Harvard and MIT for failure to caption all educational video.

    Ultimately, adding captions to educational video is the right thing to do. Blake posits that “the reason is students with disabilities have a civil right to access education on equal terms.”

    Is Your Video Copyrighted?

    The answer is almost always yes. Blake explains:

    “Most contemporary videos and sound recordings are protected by copyright law, and it’s worth noting copyright vests automatically when a video gets created. There’s no need to register it.”

    The exception being videos in the public domain. Determining exactly what is in the public domain can be challenging depending on when the content was created, when it was published, etc. He suggests online tools to help you determine a video’s public domain status: Public Domain Sherpa or Limited Times. As a general guide, he recommends assuming that any content created in the last 20 years is copyrighted.

    Does Someone Else Hold the Copyright to the Video?

    If your institution already holds the copyright for the video in question, you have no reason to fear a copyright lawsuit. So how do you know if you hold the copyright or not?

    Your organization should own copyright for most video created by university faculty, staff, or students at or for your institution. What can complicate matters is your university’s IP policy, which your general counsel can examine.

    Getting Permission to Add Captions to a Video for Education

    If you contact the copyright holder of a video and obtain permission to use it for educational purposes, you are pretty much safe. For a university, it can be as simple as asking the faculty, staff, or student, “we’d like to caption this for a class. Is that okay?” But sometimes it’s not so easy. Here are some complications for obtaining permission to caption video:

    • The copyright holder declines your request because the video is already available in an accessible form and they prefer you to use their existing captions.
    • The copyright holder declines your request, even though they do not supply captions.
    • You can’t locate the copyright holder.
    • There are multiple copyright holders – so many that contacting each one would be impractical.

    Does Adding Captions Without Explicit Permission Infringe on a Copyright Holder’s Exclusive Rights Over Their Video?

    No one’s ever sued anybody for making closed captions.

    Blake Reid
    Assistant Clinical Professor, Colorado Law

    It’s certainly possible, but there is a strong legal defense. Exclusive rights granted by copyright law extend to:

    • Reproduction of footage
    • Adaptation into derivative works
    • Distribution of content
    • Public Performance

    Creation of a transcription or caption file might be considered a derivative work, since the content was derived from the video. So while it’s a plausible legal argument that captions violate copyright law, it would not be a strong case.

    Many schools and libraries enjoy exemptions from strict interpretation of copyright law, and captioning may or may not be permitted as a result; consult with general counsel at your institution for details.

    Fair Use Saves the Day

    The strongest defense for video captioning is fair use. Blake elaborates:

    “You don’t need to ask permission to engage in fair use. So if you’re in a circumstance where you’ve decided it’s too difficult to track down copyright holders, or we feel like that’s impractical in the circumstances we’re facing, you don’t have to ask permission. Remember that whole complicated bit I just went through about which rights captioning might implicate? Doesn’t matter for fair use. You can make use of any of those exclusive rights so long as your use is fair. So all that complicated legal analysis that will give your general counsel heartburn doesn’t matter if it’s fair use.”

    The one caveat:

    Fair use in America simply means the right to hire a lawyer
    Fair use is a gray area, largely defined and clarified by case law. To date, no one in the United States has ever been sued for copyright infringement on the basis of creating captions for video.

    For more details on how to mount a strong defense of captioning educational video, watch the recording of the webinar above, starting at around 18:42.

    Can You Get Sued for Adding Captions to Educational Video?

    Technically, yes, it’s possible that someone could make the argument that adding captions violates someone’s copyright. But there’s no history of that happening in American case law. As the Harvard and MIT lawsuit illustrates, it is far more likely that a university will be sued for breaching accessibility law if you don’t add captions. It’s safer to err on the side of caution and add captions.

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