Accessibility Legislation
Copyright Challenges
Obtaining the exclusive rights, to copy and modify audiovisual works with caption content, includes the reproduction rights, adaptation rights, distribution rights, and public performance rights. The unclear relationship between reproductions and adaptations complecates the copyright issue, and the terminology surrounding captioning and description can be confusing and vary from country to country.Caption Copyright Infringement
Determining whether a particular video program is protected under copyright and if so, for how long it is protected and who owns the copyright, involves navigating a complex set of technical and legal considerations.Examples that might constitute an infringement of the reproduction, distribution, or performance rights in the video program are:
A third-party website might overlay captions on top of a program streaming in a frame from another website.
A video programming distributor might integrate the captions for synchronization with a program delivered via a proprietary video player.
An individual captioner might upload a video to a third-party video delivery service for the purpose of using the service's captioning functionality.
In some jurisdictions Fair Use provides no protection against liability for violating the Digital Rights Management (DRM) anti-circumvention measures, which contain no explicit Fair Use accommodation.
This means that third-party captioners who need to circumvent DRM on a video to accomplish the creation, modification, synchronization, or delivery of captions may face liability even if their activities are a non-infringing Fair Use.
This means that third-party captioners who need to circumvent DRM on a video to accomplish the creation, modification, synchronization, or delivery of captions may face liability even if their activities are a non-infringing Fair Use.
Captions can provide highly detailed, searchable metadata about videos, facilitating search-engine optimizations that funnel more viewers to a video and thus generating revenue from targeted advertising alongside videos.
Captions can also be used to facilitate the searching and provision of television news archives for use by journalists, researchers, librarians, students, and others.
The impact of captioning on different entities in the video programming ecosystem can range from a significant cost to a substantial revenue source.
For example, providing captioning might be expensive for individual uploading personal videos directly to the Internet, who do not have captioning tools, while the cost of providing captions for Internet video distributors might be offset or exceeded by the revenue from caption-enabled data mining, search, and advertising functions.
This dynamic is poised to add fuel to the fire in long-standing battles over the appropriate allocation of revenues between Internet video distributors and copyright holders.
For example, providing captioning might be expensive for individual uploading personal videos directly to the Internet, who do not have captioning tools, while the cost of providing captions for Internet video distributors might be offset or exceeded by the revenue from caption-enabled data mining, search, and advertising functions.
This dynamic is poised to add fuel to the fire in long-standing battles over the appropriate allocation of revenues between Internet video distributors and copyright holders.
Copyright Limitations and Exceptions
The copyright limitations and exceptions for the visually impaired must pass the three-step test as outlined in The Berne Convention.The first step applies to certain special cases limited to specified groups of users and covering certain kinds of works and uses.
The second step, that must be satisfied, is that such uses may not have the potential to conflict with a normal exploitation of the work.
The third step, the question of unreasonable prejudice, needs to be considered in order to determine if the exception should be subject to a requirement to pay equitable remuneration, or qualified as a free use.
The Fair Use Doctrine
The use of captions for non-accessibility purposes, such as search engine optimization or advertising, might not be consider under the Fair Use Doctrine.Third-party captioners seeking to utilize captions for non-accessibility purposes should be wary of the viability of fair use.
Maintaining a record of your fair use analysis can be critical for establishing good faith. Keep completed checklists on file for future reference, as the checklist can provide an important mechanism to document your decision-making process.
The purpose of the use.
The nature of the work used.
The amount and substantiality of the work used.
The effect of the use upon the potential market for or value of the work used.