legal aspects of captioning for higher ed gaeir dietrich director, high tech center training unit
TRANSCRIPT
Legal Aspects of Captioning for Higher Ed
Gaeir DietrichDirector, High Tech Center Training Unitwww.htctu.net
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
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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
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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– http://accessibility.gtri.gatech.edu/sitid/
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
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Section 504 vs. Section 508
Section 504 addresses individuals’ needs for auxiliary aids and services (accommodations).
Section 508 addresses the infrastructure that allows access.
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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
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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
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United We Stand
Access and accommodation work together– It’s a continuum
Not fully accessible? Accommodate.
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Access vs. Accommodation
Access
Accommodation
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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
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COPYRIGHTBut 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. §§ 301-305.*”
• 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
http://cyberlaw.stanford.edu/blog/2007/03/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.
Kastenmeier Guidelines
http://librarycopyright.net/resources/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 http://www.cmsimpact.org/fair-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.
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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
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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
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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
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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)
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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
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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– www.htctu.net/divisions/altmedia/captioning/
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– http://subtitle-horse.com/ – Captions and You Tube in a separate interface
Amara– http://amara.org/en/ – Similar plus uses crowd sourcing to caption
Captioning Key– http://www.dcmp.org/captioningkey/– Best practices on how to caption
Thank you!
Gaeir Dietrich 408-996-4636 [email protected] www.htctu.net
– High Tech Center Training Unit