New Report on Third-Party Video Captioning and U.S. Copyright Law

By Renee Dopplick, ACM Director of Public Policy
March 25, 2014

G3ict yesterday released a white paper, authored by Colorado Law Professor Blake Reid, on third-party captioning of video programming and the legal uncertainties arising from conflicts between accessibility laws and regulations and U.S. copyright law.

The paper, Third Party Captioning and Copyright, discusses how third-party captioning of video programming can potentially result in copyright infringement when the third-party does not hold the necessary rights to copyrighted content or does not have permission from the rights holder. The paper provides background information on accessibility requirements and their limitations under federal laws and regulations, particularly the limitations of the current captioning requirements as mandated by the FCC. For example, the FCC regulations for Internet video programming require captioning for video programming previously shown on TV but do not require captions for video clips, online-only content, and user-generated online video. The paper discusses the responsive trends of crowdsourced captions and automatically generated captions, which have developed to help meet the growing need for accessible captioning.

The paper concludes that the potential workaround of contractual relationships are “inefficient or impossible.” The paper describes the fair use doctrine as “perhaps the best hope” for resolving the legal tension, as least under some circumstances. The doctrine, however, might not apply when captions are used for non-accessibility purposes, such as for search engine optimization or online advertisement placement. There, the balancing of factors might tip away from a finding of fair use due to the economic market impacts. Further, fair use does not always provide protection against the anti-circumvention restrictions under the Digital Millennium Copyright Act (DMCA).

Given these legal uncertainties, the white paper recommends a legislative fix to make clear that third-party efforts to caption video uncaptioned by the original provider, when done for the purposes of federal or regulatory compliance or other accessibility purposes, would not constitute copyright infringement and/or would not violate the DMCA’s anti-circumvention restrictions.

For additional information about the white paper and G3ict, read the press release.

G3ict provides the 23-page white paper as a free online download in PDF.