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Running Head: Copyright Law and Post-Production Captioning

The Effects of Copyright Law on Post-Production Captioning:
The Impact on Deaf and Hard of Hearing Students
Heather Holmes
estern !regon "ni#ersity
CSE $%&' Dr( )regory *o+el
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Copyright Law and Post-Production Captioning
Sit down to watch a film with poor audio and it will ta,e only minutes +efore frustration
sets in( Dialogue- sound effects and noises off screen aide to the story line( Ha#ing not heard
what is going on- imagine then +eing tested on the material( This is an e.ample of poor access(
If this happens once it may +e o#erloo,ed( If this happens day after day- class after class- li,ely
one would not tolerate it( This is often the plight of Deaf and Hard of Hearing students ta,ing
classes in college(
The /mericans with Disa+ilities /ct 0/D/1 of %&&2 was meant to le#el the playing field
so disa+led indi#iduals would ha#e the same opportunites as their nondisa+led peers( In many
ways the /D/ has +een instrumental in impacting change indi#idually- locally- and nationally(
Howe#er- the /D/ does not apply to all situations and settings( The specifics of the /D/ and
where it applies can +e 3uite complicated( Ideally- if a person felt his rights were #iolated- he
could turn to the /D/ and as, for pro#isions( "nfortunately- in many cases the /D/ is #iolated
and no+ody ta,es notice- no+ody- that is- e.cept for the disa+led person searching for his rights(
Section 425 of the 6eha+ilitation /ct stipulates that any entity that recei#es federal dollars must
ma,e its programs- classes- offices- and en#ironments accessi+le to people with disa+ilities
0)uide to Disa+ility- 722&1( /gain- much li,e the /D/- this often depends on how well this is
enforced( !ne way to ma,e an en#ironemnt or materials accessi+le for Deaf and Hard of
Hearing indi#iduals is through the use of captioning(
Perhaps one of the most prominent places the /D/ and Section 425 of the
6eha+ilitiation /ct comes into play is in a postsecondary classroom( Imagine sitting in a
8iology class and watching a #ideo on cellular di#ision( The topic is complicated enough
without the added #aria+le of it +eing inaccessi+le due to lac, of captions( 9or Deaf and Hard of
Hearing students this poses a significant pro+lem and #iolates their rights under +oth of the
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Copyright Law and Post-Production Captioning
pre#iously mentioned laws( hile technology e.ists that could easily add captions to any film
necessary- there are laws that e.ist to pre#ent this from happening freely( Copyright law is one
such e.ample many use to suggest adding captions is a #iolation( The Digital :illenium
Copyright /ct 0DC:/1 places a protection on copyrighted materials that ma,es it ;illegal to
circum#ent a technical protection measure such as encryption((( e#en if what you did with the
content((( was a fair use; says <ames 8oyle in- The Pu+lic Domain: Enclosing the Commons of
the :ind 08oyle- 722=- >indle Location %52?1( In order to add captions a duplicate copy of the
#ideo needs to +e made- thus the indi#idual must #iolate D:C/ to do so(
Copyright law is a good idea in theory +ut lea#es much to +e desired in practice( hile
the /D/'Section 425 dictate that materials must +e made accessi+le to people with hearing loss-
copyright often ma,es it complicated to do so( hen a captioned #ersion of the #ideo is not
a#aila+le- the Disa+ility Ser#ice !ffice might try and pro#ide an interpreter or speech-to-te.t
ser#ice for the class to pro#ide ;access; to the film- +ut ha#ing to contiunally loo, at different
stimuli does not ma,e this e.perience accessi+le or e3uata+le( This is not suggesting that
interpreting or real time captioning are not e.amples of approrpaite accomodations in the
classroom- +ut instead suggesting that they are not appropriate when trying to #iew a film(
9irst- consider the use of interpreters and speech-to-te.t ser#ices in the classroom for real
time access to what is +eing said( Through these ser#ices a Deaf or Hard of Hearing student is
a+le to ta,e part in lecture and understand what is going on in the classroom( /ccording to the
@ational /ssociation of the Deaf- while this is appropriate for con#ersation- lecture-
demonstrations- or la+s- it is not a su+stitute for 3uality captioned films( The captioning on films
is called post production captioning and is often refered to as closed captioning( The Descri+ed
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Copyright Law and Post-Production Captioning
and Captioned :edia ProAect 0dcmp(org1 is considered a leader in the field of accessi+le
captions( Their proAect 072%%1 states:
Captioning is the process of con#erting the audio content of a tele#ision +roadcast-
we+cast- film- #ideo- CD-6!:- DBD- li#e e#ent- or other productions into te.t and
displaying the te.t on a screen or monitor( Captions not only display words as the te.tual
e3ui#alent of spo,en dialogue or narration- +ut they also include spea,er identification-
sound effects- and music description(
It is important that the captions are 0%1 synchroniCed and appear at appro.imately the
same time as the audio is deli#eredD 071 e3ui#alent and e3ual in content to that of the
audio- including spea,er identification and sound effectsD and 0?1 accessi+le and readily
a#aila+le to those who need or want them 0Descri+ed and Captioned :edia EDC:PF -
72%%1(
/s can +e determined from the later part of this definition- there are #ery specific elements that
ensure captions ma,e media accessi+le( Speech-to-te.t ser#ices such as C/6T- C-Print- and
Typeell do not adhere to these elements and therefore do not pro#ide the same le#el of access
0DC:P- 72%%1( Speech-to-te.t ser#ices adhere to their own guidelines to ensure ser#ices are
effecti#e for real time access( They do not attempt to ma,e their te.t easy to read on a #ideo
screen +y adding appropriate line +rea,s- num+er of characters- or num+er of lines( Ta,ing all of
this into consideration and remem+ering that access is supposed to +e guaranteed +y the /D/
and Section 425- it is confusing as to why copyright law has +een a+le to deter the addition of
captions to #ideo and media without the e.pressed permission from the copyright holder( The
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Copyright Law and Post-Production Captioning
idea of +rea,ing a law is a deterring factor for many e#en when the law seems to ma,e little
sense in its conte.t(
Lawrence Lessig- 0722&1 spea,s to this in 6emi.: :a,ing /rt and Commerce Thri#e in
the Hy+rid Economy- and discusses the idea of copyright law holding too much power( The
ina+ility to add captions without #iolating copyright law is a good e.ample of how this seems to
+e an accurate assessment( Lessig suggests-
The e.pectation of access on demand +uilds slowly- and it +uilds differently across
generations((( 8ut at a certain point- perfect access 0meaning the a+ility to get whate#er
you want whene#er you want it1 will seem o+#ious( /nd when it seems o+#ious-
anything that resists that e.pectation will seem ridiculous( 6idiculous- in turn- ma,es
many of us willing to +rea, the rules that restrict access( E#en the good +ecome pirates
in a world where the rules seem a+surd( (p. 44
Tell the student who is missing content from the +iology #ideo that it cannot +e captioned
+ecause of copyright law and li,ely you will find a pirate in the ma,ing( Students in past
generations may ha#e accepted watching a #ideo without captions more readily +ecause it was
not easy to ma,e a captioned #ersion( ith the technology a#aila+le today it seems ;ridiculous;
a law would stand in the way of accessi+ility( hile the #ideo might +e +oring and outdated- all
students should ha#e the same le#el of access to its contents( /s mentioned a+o#e- the reason
adding captions is not co#ered under copyright law is +ecause one needs to ma,e a copy of the
#ideo to add captions( !nce captions ha#e +een added and the #ideo is sa#ed- a new product is
created- and this is prohi+ited under the Digital :illennium Copyright /ct 0D:C/1 08oyle-
722=1( E#en if there is no intent to sell the captioned #ideo- the act of creating a copy is still
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Copyright Law and Post-Production Captioning
considered a #iolation and forces a professional to ma,e the decision to deny access to a student
or to +rea, copyright law- the latter of which seems to ha#e a less detrimental effect on the
student( hen the decision is made to mo#e forward with captioning without permission- it is
often made with the claim of Gfair useH in mind( "nfortunately- 9air "se as it is e.plained in
Section %2I of copyright law does not include a pro#ision for the addition of captions(
/ccording to the "S Copyright !ffice 072%71- in order for the use of copyrighted
materials to 3ualify under fair use- certain stipulations must +e met( The four factors are:
purpose- nature of the material- the amount used- and the impact on the mar,et 09air "se- 72%71(
In 6eclaiming 9air "se: How to Put 8alance 8ac, in Copyright 072%%1 +y Patricia /ufderheide
and Peter <asCi- the authors discuss the need for reform of the 9air "se Law( They suggest
people who are +rea,ing copyright laws in many instances are not trying to get away with
criminal acts and stealing information is not their intent 0/ufderheide J <asCi- 72%%- Loc( 5$41(
/ccording to <ohn aldo- /d#ocacy Director and Counsel for ashington and !regon
Communication /ccess ProAect- GThe 3uestion of whether captioning can #iolate copyright laws
is an unsettled and difficult one( The only thing I can tell you is that there is not a specific
pro#ision of the copyright laws that resol#e this 3uestion definiti#elyH 0personal communication-
/pril %I- 72%?1(
That +eing said- /ufderheide and <asCi ha#e a fairly fluid definition of what 9air "se
co#ers and one might +e con#inced after reading their insight that captions should +e co#ered(
/s e.citing and promising as this sounds- <ason Star, with the DC:P confirmed there has +een
no change to date that would allow the addition of captions under the claim of 9air "se 0personal
communication- /pril %%- 72%?1(
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Copyright Law and Post-Production Captioning
/ssuming captions cannot +e added under the premise of 9air "se- the other option is to
contact the copyright holder and as, for permission( This can +e a long and drawn out process
and does not always lead to a desira+le answer( The +est case scenario is the copyright holder
gi#es permission for the school to ha#e the #ideo captioned( The school can then produce the
captions in house or outsource them to an outside #endor( !nce the captions are complete they
can +e added to the #ideo and the student will ha#e complete access(
The worst case scenario is the copyright holder denies the right to add captions saying it
is a fundamental alteration to their materials( In this case- the student will either ha#e an
interpreter- speech-to-te.t- or no access at all to the #ideo materials( E#en with an interpreter or
speech-to-te.t the e.perience is not e3uita+le( The only reason an interpreter or speech-to-te.t
ser#ices could +e used is in this instance when the addition of captions cannot- is +ecause these
ser#ices will not alter the #ideo'media is any way(
The most common scenario- howe#er- is the third one- contact to the copyright
holder has resulted in no return communication( In this case- the school has to decide whether or
not to mo#e ahead with adding captions or denying the studentKs re3uest( In most situations the
students are denied their right to accessi+le media( The school airs on the side of caution and the
student with a hearing loss is left +ehind( In the instance a school does decide to mo#e forward
with adding captions to copyrighted materials without permission- they often want to ,eep the
media on file to use in other circumstances when the need arises( This is pro+lematic under fair
use +ecause not only is the institution altering the product in its entirety- +ut they are ,eeping this
#ersion to +e used again in the future( If a more recent #ersion of the film +ecomes a#aila+le and
it is a choice +etween purchasing the new #ersion and ha#ing to add captions again- or
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Copyright Law and Post-Production Captioning
continuing to use the older 0now captioned1 #ersion- the school would li,ely decide to use the
older #ersion( /lthough they are not selling the captioned #ersion- the decision to not purchase a
more recent #ersion could theoretically ta,e profits away from the original author of the film
thus #iolating fair use copyright laws 09air "se- 72%71 ( hile the costs associated with adding
captions is not o#erly e.u+erant- if there are many #ideos that need captioned the amount can
add up and +ecome significant( This e.ample is common among postsecondary institutions in
the "nited States( !nly a small fraction of all education materials are captioned or su+titled(
To try to com+at this pro+lem- many schools are creating captioned media policies( These
policies state that use of uncaptioned materials is prohi+ited( If an instructor wants to use media
it must +e captioned( If new media is purchased for the institution- it must +e captioned( / good
e.ample of this can +e seen in the California Community College System( Their media policy
states that all media must +e captioned whether it is purchased or made in house( !ne e.ample-
8er,eley City College states on their we+site-
/s a community college- we are mandated +y Section 42=- to pro#ide our students who
are hard of hearing or deaf- e3ual access to all #ideo material( To that end- since 722%- it
has +een the policy at 8er,eley City College to purchase only captioned #ideos( In
addition- #ideos in the li+rary collection purchased +efore 722%- are +eing replaced
0Closed Captioning- 72%?1(
If it was easier to add captions to materials under the copyright law- institutions would not need
to de#elop o#erarching policies to insure only captioned materials were purchased( /s
mentioned pre#iously- copyright laws apply whether the materials are purchased or created
internally( If an instructor creates a #ideo to show his class he is the copyright owner of that
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Copyright Law and Post-Production Captioning
#ideo( It the #ideo is then added to LouTu+e and someone finds it and would li,e to use it for
their class in a California Community College- they must contact the instructor 0copyright
owner1 and as, if a captioned #ersion e.ists( If a captioned #ersion does not e.ist he must as,
for permission to ha#e it captioned( The copyright owner may appro#e or deny the re3uest( In
some instances- the copyright owner will gi#e permission to ha#e the #ideo captioned only if
they are pro#ided with a ;caption master; according to 6alph 8lac,- general counsel with the
California Community Colleges ChancellorKs !ffice 0Legal !pinion : 27-77- 72271(
:ost entities agree adding captions is not co#ered under fair use- +ut there are some
documents that seem to suggest otherwise( Circular 7%- ;6eproduction of Copyrighted or,s +y
Educators and Li+rarians; 722&- states-
In identifying the constraints that would ha#e to +e imposed within an institution in order
for these acti#ities to +e considered as fair use- it has +een suggested that the purpose of
the use would ha#e to +e noncommercial in e#ery respect- and educational in the sense
that it ser#es as part of a deaf or hearing-impaired studentMs learning en#ironment
within the institution- and that the institution would ha#e to insure that the master and wor, copy
would remain in the hands of a limited num+er of authoriCed personnel within the
institution- would +e responsi+le for assuring against its unauthoriCed reproduction or
distri+ution- or its performance or retention for other than educational purposes within the
institution( or, copies of captioned programs could +e shared among institutions for the
deaf a+iding +y the constraints specified( /ssuming that these constraints are +oth
imposed and enforced- and that no other factors inter#ene to render the use unfair- the
committee +elie#es that the acti#ities descri+ed could reasona+ly +e considered fair use
under section %2I(
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Copyright Law and Post-Production Captioning
The entirety of this 3uote is included to show how different entities ma,e different Audgments on
this topic( hile this circular seems to suggest captioning would +e co#ered under certain
conditions- <ason Star, shared this document with Howard 6osen+loom- legal counsel with the
@ational /ssociation of the Deaf 0@/D1- and it was his opinion that adding captions is still not
considered co#ered +y fair use under copyright laws 0personal communication- /pril %%- 72%?1(
In contrast to this- /ufderheide and <asCi 072%%1 do not specifically address adding
captions in their te.t- +ut their concept of fair use is li+eral enough to suggest it should +e
included( They state- ;In e#eryday practice- howe#er- fair use functions as a relia+le- full-
fledged right- of which we are all free to ta,e ad#antage; 0>indle Location 47&1( The distinction
+etween what is considered fair use and what is not is confusing enough +efore ta,ing their #iew
into consideration( If it is a right to ma,e use of fair use and add captions- perhaps there would
+e less #iolation to the /D/ and Section 425 +ecause there would +e less concern for infringing
on copyright( If people are less concerned a+out +rea,ing a law- students would ha#e +etter
accommodations and therefore +etter and more e3uita+le access(
!#erall copyright law e.ists to protect the rights of those who create( Those rights
should not supersede the rights afforded those with disa+ilities under ci#il rights laws such as the
/D/ and Section 425 of the 6eha+ilitation /ct( hen laws meant to protect intellectual
property +ecome more important and more powerful 0read: enforced1 than ci#il rights laws- it is
time for a change( /s more campuses create captioned media policies- more pressure will +e put
on pu+lishers and copyright holders to add captions to their products if they want to compete for
+usiness( hen this happens Deaf and Hard of Hearing students will finally ha#e impro#ed
access(
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Copyright Law and Post-Production Captioning
or,s Cited
/ufderheide- P(- J <asCi- P( 072%%1( Reclaiming Fair Use: How to Put Balance Back in
Copyright( Chicago: The "ni#ersity of Chicago Press- 72%%( Print(
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Copyright Law and Post-Production Captioning
8er,ley City College 0<une %?- 72%?1( Closed Captioning( 6etrie#ed from
http:''www(+er,eleycitycollege(edu'wp'ams'closed-captioning'
8oyle- <ames( The Public Domain: Enclosing the Commons o the !in"( @ew Ha#en: Lale
"ni#ersity Press- 722=( Print(
Descri+ed and Captioned :edia Program( 0&anuary 1%' 72%%1( Nuality Captioning( 6etrie#ed
from http:'' http:''captioning,ey(org'3ualityOcaptioning(html
Lessig- Lawrence( Remi#: !aking $rt an" Commerce Thri%e in the Hybri" Economy( London-
">: Penguin Press- 722=( Print(
@ational /ssociation of the Deaf( 0n(d(1( hen is Captioning 6e3uiredP 6etrie#ed from
http:''www(nad(org'issues'technology'captioning'when-re3uired
"S Department of <ustice( 0722&1( / )uide to Disa+ility 6ights Law( Retrie%e" rom:
http:&&www'a"a'go%&cgui"e'htm
"S Copyright !ffice( 072%71( Fair Use 09L-%271( ashington- DC: "(S( "S Copyright !ffice:
Li+rary of Congress(
"S Copyright !ffice( 0722&1( Repro"uction o Copyrighte" (orks by E"ucators an"
)ibrarians 0Circular 7%1( ashington- DC: "(S( "S Copyright !ffice: Li+rary of
Congress(