Legal Aspects of Captioning for Higher Ed Gaeir Dietrich Director, High Tech Center Training Unit

Laws Requiring Captions  FCC: Federal Communications Commission –Governs airwaves –Laws apply to broadcasters and to programs originally captioned uploaded to Internet  ADA –Requires government PSAs be caption  Section 508 –Requires captioning of videos –Applies to federal government

Why caption?  Most colleges are captioning when a student who requires captions requests them  In other words, it is an accommodation

ACCESS VS. ACCOMMODATION

Federal Laws  ADAAA (Americans with Disabilities Act as Amended) –Title II (public colleges/universities) –Title III (private colleges/universities)  Rehabilitation Act –Section 504 –Section 508 9/2/2015

ADA & Section 504  Accommodation model –i.e., if it doesn’t work for a student fix it for that student  Auxiliary aids and services are provided to allow full participation by disabled student  Both laws very similar in this area

Section 508  Part of Rehabilitation Act of 1973, as amended in 1998  Section 508 standards added in 2001  As written it applies only to the federal government

Does 508 apply to you?  Some states have adopted the Section 508 Standards – stateLawAtGlance.php  Even if Section 508 does not apply directly, it should still be considered best practice to ensure an equally effective experience for all students 9/2/2015www.htctu.net8

Section 504 vs. Section 508  Section 504 addresses individuals’ needs for auxiliary aids and services (accommodations).  Section 508 addresses the infrastructure that allows access. 9/2/2015www.htctu.net9

Rehabilitation Act of 1973  Section 504 is about accommodation. –Making it work for individuals –Disability service offices created to serve students’ needs.  Section 508 is about access. –Create accessible software, Web sites, videos, and documents. –Purchase accessible products. –Campuswide responsibility 9/2/2015www.htctu.net10

A Campus Analogy  Section 504 –Deaf student requests that videos for her class be captioned  Section 508 –New videos must be captioned before being shown in the classroom for the first time 9/2/2015www.htctu.net11

United We Stand  Access and accommodation work together –It’s a continuum  Not fully accessible? Accommodate. 9/2/2015www.htctu.net12

Access vs. Accommodation 9/2/2015www.htctu.net13

Applying This to Videos  The campus buys captioned materials when possible  When not possible, ordering department pays for captioning before the video is used  AND Individual accommodations may still be required 9/2/2015www.htctu.net14

COPYRIGHT But what about…

Introducing: COPYRIGHT  Section 106 of title 17, United States Code, as amended in 1995 and 2002  § 106 · Exclusive rights in copyrighted works

Five Fundamental Rights  Copyright law gives the copyright owner five fundamental, exclusive rights –Reproduction –Adaptation –Publication –Performance –Display

The Copyright Act  Which means that without permission we CANNOT –Reproduce… –Adapt… –Publish… –Perform… –Display… –Their works!  AND we cannot do so until copyright runs out!

1976 Amendments to the U.S. Copyright Act  General Rule –“[F]or works created on or after January 1, 1978, copyright protection endures for the period of the life of the author plus 70 years. See generally 17 U.S.C. §§ *” AIM Commission Report *Complete text found in Section 106 of title 17, United States Code, as amended in 1995 and 2002

Is This Fair?  Stanford Law School, The Center for Internet and Society  Fair(y) Use Tale –“Professor Eric Faden of Bucknell University created this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms.” –CIS Web site  3/fairy-use-tale 3/fairy-use-tale

Exceptions  Written into the Copyright Act, Chapter 17 of the U.S. Code, as amended in 1987 –“Fair use” – based on existing court doctrine now Section 107 of the Copyright Act –TEACH Act: Technology, Education, and Copyright Harmonization Act of 2002 Mediated instructional activities transmitted via digital networks

Fair Use  Is a defensive argument under the law –Affirmative defense  Does not give specific direction of how works can or cannot be used  Allows one to argue that the usage should be considered fair because…

“Fair Use”: Four Factors  A fair use analysis requires the court to balance at least four factors set forth in the statute: –purpose and character of the use, –nature of the copyrighted “work” [book, thesis, article, etc.], –amount and substantiality of the portion used, and –effect upon the market for the copyrighted work

Fair Use  Fair Use is not a law but an argument under the law  For video captioning –For educational purposes—in favor –Nonfiction works—often in favor, but dramatic works more protected –Making a complete copy—not in favor –If no economic impact—in favor

Bottom Line  If you are not impacting the copyright owner’s income or potential for income from their work, you are probably pretty safe

TEACH Act  The Technology, Education, and Copyright Harmonization (TEACH) Act –November 2, 2002  Instructors may use a wider range of works in distance learning environments  Greater latitude when it comes to storing, copying and digitizing materials

TEACH and Media  Part of mediated instructional activities  Specific students enrolled in a specific class  Either 'live' or asynchronous class sessions.  "reasonable and limited portions," such as might be used in live classroom session,  develop and publiciz its copyright policies  technological measures to ensure compliance

But NOT  Transmission of textbook materials  Electronic reserves, coursepacks (electronic or paper) or interlibrary loan (ILL).  Commercial document delivery.  Conversion of materials from analog to digital formats, except when for authorized transmissions and when a digital version of a work is unavailable or protected by technological measures

COPYRIGHT AND VIDEOS

Off-Air Taping  The U.S. Supreme Court has held that off- air taping by individuals for home use is legal in most cases. The same is not true for taping programs for use in a classroom setting. The use of off-air taped materials by teachers is permitted, under the "fair use" concept, only under certain restricted conditions. See "Fair use" in off-air videotaping: the Kastenmeier guidelines."Fair use" in off-air videotaping: the Kastenmeier guidelines

Kastenmeier Guidelines  fairuse/guidelines.php  created by an Ad Hoc Committee (see House Report 2223 [H.R. 2223])  Do not have the force of law, HOWEVER, they have been cited by the courts in a number of copyright cases  apply to off-air recording by non-profit educational institutions

Kastenmeier In a Nutshell  Retained for a period not to exceed the first forty-five (45) consecutive calendar days after the date of recording  Used once and repeated once only when instructional reinforcement is necessary  Must include the copyright notice on the broadcast program as recorded

By the Way  Programs videotaped from TV will have the captions there EVEN if they were not turned on during taping  Recording to DVD varies

Other Guidance  Center for Media and Social Impact  use/related-materials/codes/code-best- practices-fair-use-media-literacy-education

VIDEOS AND CAPTIONING

A Word about Captions  Always done in the language spoken in the video –Spanish language videos would be captioned in Spanish, not English –Subtitles not the same, but often will do  Include all auditory content, not just speech –Slamming doors, barking dogs, laughter, etc. are all included in text descriptions

Be Aware  Closed captions are turned on and off with a “decoder”  Televisions (since the ‘80s) have decoders built in; not all overhead projectors do –Epson, Panasonic, Smart make projectors with decoders  External decoders can be purchased

Captioning In-depth under 508  “Raw footage” exempt –Single use, restricted use, not archived  Restricted access materials –If no users require captions, do not need  Transcripts –Not sufficient for video (must have synchronized text and video) –Fine for audio-only podcasts

You Tube  Yes, can be captioned  May not need permission if you simply stream words at the same time as the video –Subtitle Horse, Amara  If it is a single-use, accommodate as necessary, rather than providing access

Podcasts  Audio only –A transcript is all that is needed  Audio and video –Synchronized captions required if it is public access –Accommodation can be provided on request if it is a restricted audience (i.e., locked inside LMS)

Audio Description  508 does require it –Can be technically very challenging  However, only needed in order to make content clear –Can potentially be handled by other means  Suggest accommodate as needed

Legal Issues  Unless your campus owns the copyright, get permission –To caption –To change format (VHS to DVD; DVD to Web)  Legal opinion from California Community Colleges Chancellor’s Office – cc/LO_M_02-22.pdf

M02-22: August 2,2002, CCCCO  Recommendations –Purchase captioned materials whenever possible –Borrow captioned version through Interlibrary Loan –Provide an alternate captioned video –Obtain permission to caption –Caption without permission

Captioning without Permission  Make an attempt to obtain permission –Repeat attempts (3 times?) –After repeated attempts, caption  Finding the copyright holder may not be possible –Document the attempt and caption  Can rely on Fair Use –Campus (or instructor) owns the video

And What IS Fair?  If you caption, only circulate the number of copies you OWN –If campus owns one copy, only circulate one copy –Lock the other copy away  Remember, fair use does not smile upon you if you impact the copyright holder’s income from their IP

Copyright Holder Wants a Copy  Sometimes copyright holder says you can caption if you provide them a copy  Concern over a private gift of public funds…  BUT…consider that this is the cost of captioning charged by the copyright holder  Yes, copyright holders CAN charge you to caption

What If They Say “No”?  Accommodate the student  May need to caption and then not retain the captioned version  HOWEVER, keep you transcript and time- coded files for next time

Instructor-Owned Video  Work with your library!  Caption  Hold onto instructor video and loan them the captioned video  If they leave institution, they can get back their version  Your captioned version gets locked away unless campus owns, as well

OR  Get instructor to sign documentation ensuring that they will not use the two copies independently  Then give them both copies

RESOURCES

Resources  Subtitle Horse – –Captions and You Tube in a separate interface  Amara – –Similar plus uses crowd sourcing to caption  Captioning Key – –Best practices on how to caption

Thank you!  Gaeir Dietrich    –High Tech Center Training Unit