Transcript Creating Alternate Media - Accessing Higher Ground

Legal Aspects of Captioning for
Higher Ed
Gaeir Dietrich
Director, High Tech Center Training Unit
www.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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But what about…
COPYRIGHT
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
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Reproduction
Adaptation
Publication
Performance
Display
The Copyright Act
 Which means that without permission we
CANNOT
–
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–
–
–
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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/2007/0
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.
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-bestpractices-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
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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