Q&A on Copyright Law and Video Captioning for Education

April 23, 2015 BY EMILY GRIFFIN
Updated: January 4, 2018

Copyright law and its application to captioning educational video is a serious concern for educators. That’s why 3Play hosted a webinar with copyright law expert Blake Reid to explore the topic in a 30-minute presentation.

What copyright problems have you run into?

At the end of Blake’s presentation, we ran a quick poll of webinar attendees asking what copyright problems they experience at their institution. The majority indicated professors’ concerns. This suggests that professors in higher education need more clarification about what constitutes fair use of video captioning, and which practices are more risky.

What copyright problems have you run into? 2%: memo from university; 3% call from publisher; 44% concerns from professors; 26% other; 25% none.
Blake gave in-depth answers to specific questions at the end of the webinar. Start watching at 30:29, or read the highlights below.

If you can’t find the producer of a YouTube video to ask for permission, can you still caption it?

BLAKE REID: Let me break this down in a couple ways.
It’s worth mentioning the work that YouTube is doing on captions. For anybody who uploads a video to YouTube, they now have a lot of options for adding their own captions, and so to the extent that folks are using videos from YouTube, it’s never a terrible idea to drop the person a note who created the video and say, hey, why don’t you think about adding captions? YouTube makes it very easy to do now.

But let’s assume you’ve got a professor who has decided to use a YouTube video, and the question they have is whether they can legally add captions. And obviously, there are tools. 3Play Media has one. There’s another called Universal Subtitles, which has now been renamed Amara, that will allow you to overlay captions on top of a YouTube video.

So the questions you need to ask are:

Is it OK to show the YouTube video in class?

There are very good arguments under both the fair use doctrine and under the educational exceptions that that’s a permissible thing to do.

Is adding a closed captions overlay going to be an additional copyright law problem?

You’ve got to ask yourself, who is going to track down the fact that you captioned the video for the class and get so mad about that that they’re going to file a lawsuit against you? …[there’s] a very low likelihood that anyone is going to care about it.

In general, unless you are doing something like selling the captions, using them for some purpose other than education, or making them widely available potentially for people to sell, then you’re still in good shape under fair use. The copyright problem there is pretty nominal, but it’s also worth considering the risk there.

There are often ways to make the captions available only to the folks in the class. In that case, you’ve got to ask yourself, who is going to track down the fact that you captioned the video for the class and get so mad about that that they’re going to file a lawsuit against you?

Now, that doesn’t mean that nobody will ever do that, but in that case, you’ve got a very, very good argument that what you’re doing is fair use and a very low likelihood that anyone is going to care about it.

The person who’s going to care the most about the video not being captioned is the student in your class who’s paying the university a lot of money and who’s entitled under federal law to get access to the captions.

Is there a restriction on the length of video you can caption under fair use?

BLAKE REID: So first, I want to dispel something that’s out there. A lot of you have probably heard things like, ‘it’s only OK to make fair use of a few seconds of a video,’ or ‘it’s only OK to use a really limited slice of the video.’
Now, for certain purposes, that may be the case. You may have heard of fair use cases around sampling where somebody samples a line of music in their own song, or where they’re using fair use to engage in criticism, where they want to post a little clip of a video or a little excerpt of a book and in their movie review or their book review, they want to criticize it.

There’s a strong argument that in a lot of those cases, you can’t post the entire thing because you can make due with just a few seconds. There’s some case law around that when your purpose is to do criticism or commentary. If you’re doing a remix and you sample too much, you might run into a problem because then you’re just re-appropriating the entire work. And again, that’s a very complicated area of law, but this is a different context than captioning.

When we’re talking about captioning, the whole reason you’re doing it is to make the video accessible to a student with disabilities. So would you be able to successfully do that if you captioned 30 seconds of a five-minute video the professor is showing? Of course not. That’s not equal access for that student, and the whole reason that you’re trying to caption it is to give the student access to the video.

Please don’t ever say, oh, we can only caption 30 seconds of this video because that’s how fair use works.

When you’re making an accessible transformation, that whatever portion of the video the students without disabilities are getting access to, students with disabilities should get access to that same portion.

There may actually be some fair use concerns about publicly performing videos in general to all students, although there are many educational exemptions. There may be reasons why professors decide they’re not going to show an entire video to a class. Your university will probably have policies about how much of an article you copy before you have to have the students buy the book and that sort of thing.

But whatever you arrive at for your students in general, your students with disabilities ought to get access to the same amount of it. So if that means you’ve got to caption an entire video because you provide access to that entire video to students with disabilities, then that’s what you’ve got to do.

So please don’t ever say, oh, we can only caption 30 seconds of this video because that’s how fair use works. If it’s OK to show five minutes of the video to the rest of the class, it’s OK to caption five minutes of the video for your students with disabilities.

Is there a time limit for fair use of a video caption file?

    BLAKE REID: In other words, can you host these captions forever? If you are adding the captions as part of your university’s accessibility policy in order to accommodate students with disabilities who need access, you’ve got a strong argument that you can keep the captions live so long as they are not getting used for some other purpose.

What’s the difference between fair use when you’re teaching online versus in a classroom?

BLAKE REID: Have a conversation with your counsel, but it gets back to the purpose of the captions. Are the captions in order to meet your obligations to your students under federal accessibility law? If yes, then you still have got a pretty strong argument in those cases.

The only thing you’ve got to be careful of in those cases is if you’re showing videos in online courses. Let’s say you’re teaching a film class and you’re showing an entire movie. If you’re streaming it online, well, that can be a little bit tricky if you don’t restrict access to the video only to students in the class. That area gets a little bit more complicated for videos in general because you have to ask yourself, are there copyright problems with displaying this video that I don’t own to my students in general, whether they’re disabled or not?

But I think if you arrive at the decision that you’re going to show video and that that’s OK, the nominal additional risk of adding captions to it is generally qualified as fair use.

To be clear: you’ve got to be careful about hosting videos online that you don’t own in general. But if you’re going to make them accessible to your students, I think it adds pretty limited risk to make them accessible to all of your students, including your students with disabilities.

How would fair use work for online videos posted from outside of the US but still used for educational purposes?

Foreign Copyright Law

If your university has some sort of presence or is teaching students in those countries in a way that it might be subject to lawsuits there, you might be at risk. Countries across the world have very different copyright laws than the United States and not every country has fair use.

It really depends on what countries you’re talking about and what the classroom situation is. In other words, are you teaching to students in that country? And in that case, it may be worth getting familiar with the copyright laws in that country.

Translations and Copyright Law

A lot of folks will say, OK, I’m adding closed captions, and by the way, while I’m at it, why don’t I convert the video so that it has Spanish subtitles if I’ve got students that speak Spanish as a first language? Or why don’t I convert the video to French, or to Chinese — and there may be lots of good reasons to do that.

That gets a little bit trickier as far as copyright law goes. In particular, copyright owners tend to get a little bit more nervous about the translations, because a lot of the strategies around selling videos involve selling them in other countries a couple of weeks later or a couple of months later with the foreign language subtitles.

So if you are captioning a video and translating it into another language, you have to say, OK, we’re getting out of a strictly accessibility oriented purpose and we’re looking at foreign language translation. And then the question gets a little more complicated and you have to ask yourself, are we doing this to a video that we think the copyright holder is going to get upset about it? Is this a mainstream movie or a TV show? Is this something that we’ve got to be worried about?

On the other hand, it might be a video that a professor at a foreign institution has created who might be totally fine with you doing that. In general, when foreign countries gets into the mix, you’ve got to be a little bit more careful.

Would having a transcript as a separate document from the video be safer or more risky than captioning the video?

BLAKE REID: Think about your obligations under accessibility law.
If you were saying, we’re going to provide a transcript to a student who is deaf or hard of hearing as an accommodation to view the video, you need to be concerned in that case about whether that’s actually a sufficient accommodation or not.

For many students, it’s not going to be. They’re going to say, no, we want to be able to view the captions on the video, because sitting there and looking down at the transcript that we have to hold and then looking up at the video and trying to follow along is not the same as having the captions on the screen with everybody else.

Transcripts are often a pretty inferior solution for the student who needs the accommodation.

Captions Plugin:
The Easiest Way to Add Captions to any Video

3Play’s captions plugin is a free tool that lets you add closed captions or multilingual subtitles to almost any video, even if it’s on someone else’s YouTube channel.

Now, the question is under copyright law, whether that makes any difference.

The argument for using a transcript is generally a little bit problematic from an accessibility perspective.

You actually run some higher risks there because you’re creating a document and giving it to the student in an easily shareable form. You might run into more concerns with abuse where a student sends it to everybody else in class or posts it to the internet. That might be the kind of thing that a copyright holder is actually unhappy with, because they don’t want the script of a video to be circulated.

You can mostly avoid that when you’re using captions. Obviously, on the back end, there’s a separate caption file and video file, but it’s a little bit harder to distribute them separately. And so my inclination is that it’s nominally more risky from a copyright law perspective to use a transcript.

Does it matter if a video has DRM, and do streaming videos ever have DRM?

BLAKE REID: Yes, lots of forms of video have Digital Rights Management (DRM). What DRM actually means for the purposes of the Digital Millennium Copyright Act is a pretty complicated question, but the most important question to ask yourself is: do you need to circumvent the DRM in order to add the captions, or do you have access to a captioning solution that can add the videos over the top?

Now, hopefully in many cases, if you’re talking about YouTube videos, hopefully you can overlay the captions over the top of the video without having to circumvent the DRM. Then you don’t have to worry about it all.

But you may run into problems elsewhere, like with a DVD. Many commercial DVDs have digital rights management on them such that you can’t extract clips of the video without having to break the DVD. So then it can get a little bit more complicated.

It’s worth noting that there’s an exemption process of the Copyright Office, and there exemptions for different uses of DVDs and streaming video, including for educational purposes.

It’s a little complicated to answer this question right now because the Copyright Office is actually in the midst of a proceeding considering a whole new batch of exceptions. The law is in flux here.

You will know if you hit DRM. If you’re trying to feed it through your captioning software and it says, oh, we can’t deal with this video because of the DRM, then you’re going to know. Please don’t walk away thinking, oh my gosh, everything has DRM and this is something I always have to worry about. In many cases, there’s not going to be a DRM problem, either because the video doesn’t have it in the first place, or because your captioning solutions can accommodate adding captions to it without having to break the DRM.

But there are circumstances out there where you have to. Before you break it, pause at that moment and go talk to the general counsel.

Do you have any practical advice for disability services offices to make sure that fair use gets preserved?

BLAKE REID: Make your voice heard. For example, librarian organizations take these issues very seriously. Make sure to raise this as an issue with them and let them know how it’s interfering with your work.
It’s hard to know what’s happening in disability services offices without direct accounts. You’re really on the ground dealing with all of the requests that come in, all the videos, all the caption vendors, all the DRM and that stuff. If you can help get your stories out, and whether that’s through trade associations or other circles that you run with, that’s a huge help for policymakers.

We don’t want copyright to become a barrier to making sure our students all get equal access to the education that we’re providing them.

Also, as you’re working with folks internally, whether it’s your colleagues in disability services, faculty working groups, or general counsels, take this slide deck to them and talk to them about it. Explain that there’s a strong argument that we ought to be able to do our jobs, that accessibility really ought to be treated as fair use. We don’t want copyright to become a barrier to making sure our students all get equal access to the education that we’re providing them. Just to make sure you talk about it and the myths about fair use don’t get perpetuated.

What do you recommend that people do?

BLAKE REID: Make a relationship with folks at your general counsel’s office. Drop them a line and say, hey, by the way, this is the approach that we are taking to accessibility. We’re going to treat adding captions as fair use, and if you have any concerns about it, please come meet with us. And really do engage about it and really talk with them about their concerns, but let them know why you think accessibility is important and get them on your side. And if you can do that, then do what you do. Make the videos accessible. Make captions available.
Be proactive in getting the message out to faculty members. Let them know they have students that rely on this. This is part of what we do as an institution. And by the way, here are the resources for you to help make your class accessible and design it to be accessible from the get go.

If people understand the needs that are out there and the tools and solutions that are available to them, the copyright stuff is going to be an afterthought.

Read the free report: 2017 State of Captioning.

The closed caption CC icon shown in the middle of a TV.