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Fair Use for Captioning Content Outside of Education

  • Fair Use for captioning content outside of education

    Note: While the information in this article is intended to give you a better understanding of fair use and how it’s been used in the past, this is not legal advice. We advise you to consult your legal team for specific questions and advice.

    Captioning Third Party Videos

    What happens when you want to caption third party videos for use outside of the educational context? Where do you find the balance between accessibility law and copyright law, and is it considered fair use to add captions to video content that you don’t own? When it comes to captioning third party videos, fair use offers some leeway. Yet even this principle, designed to protect against copyright infringement claims, is ambiguous and subject to interpretation. This means that it can be tricky to remain in compliance with both accessibility and copyright laws when adding captions to videos for public consumption.

    Why Caption?

    There are many reasons to caption videos, including accessibility, learning benefits, the ability to watch videos in sound-sensitive environments, and of course legal compliance. Captioning video content is also a requirement under several accessibility and anti-discrimination laws including the Americans with Disabilities Act (ADA) and The Rehabilitation Act.

    Title II of the ADA prohibits disability discrimination by all public entities at the local and state level. Title III prohibits disability discrimination by “places of public accommodation,” including shared or public entities such as libraries, hotels, museums, theaters, and transportation services, that are privately owned. Video distributed or shown by these places are required to be captioned.

    In addition, government entities, educational institutions, and private organizations that receive federal funding are required to make their video programming accessible – by providing captions – under Section 504 of the Rehabilitation Act.

    Accessibility Law v. Copyright Law

    In the US, both federal and state accessibility laws require captioning on video content in many different contexts. Regardless of the legal requirements to caption, many video producers fail to provide captions on their videos for one reason or another (although frequently because of cost.)

    In addition to accessibility laws, the US also has strict copyright laws that protect the creators of videos against copying. It can be argued that creating captions “copies” the protected work by transcribing the video’s dialogue word for word. Furthermore, in order to add captions to videos you don’t own, organizations often have to download and republish the videos with captions.

    This leaves third party individuals with a lot of questions when they want to show an inaccessible video in an accessible format. Failing to caption the videos would mean violating accessibility law (and excluding individuals who need captions) but is captioning them a violation of copyright law?

    Fair Use

    When it comes to captioning third party videos, fair use use typically comes into play. However, despite seemingly simple criteria for determining fair use, things are still quite ambiguous and subject to interpretation. No one wants to deal with a lawsuit whether it’s for violating accessibility law or copyright law. That’s why 3Play Media offers a workaround!

    Four Principles Used to Determine Fair Use: one: the purpose and character of your use; 2: the nature of the copyrighted work; 3: the amount and substantiality of the portion taken; 4: the effect of the use upon the potential market

    Captioning Workaround

    With difficult-to-decipher laws and fast­-changing technology, it can be challenging to determine which situations are protected under fair use and which are not.

    Fortunately, 3Play Media’s captions plugin and one-line YouTube embed both allow you to provide captions to videos that you don’t own.

    Caption Plugin

    The captions plugin is a free tool that lets you add closed captions to almost any video. The plugin is compatible with most video players including players that don’t natively support captions.

    The customizable plugin also makes your video searchable and easier to navigate. The built-in video search bar lets users search through the captions and jump to any point in the video by simply clicking on the text. All of this, without worrying about copyright infringement!

    One-Line YouTube Embed

    Similarly, our one-line YouTube embed allows you to add a captions plugin or interactive transcript to YouTube videos with one simple embed. It works with any YouTube video, and is a great workaround for copyright concerns, because it does not require republishing! This means you can add captions to a third party video that you don’t own, worry-free.

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    Get started with the captions plugin today to make videos that you don’t own accessible!

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