[Athen] Question about Chafee Amendment and Captioning

[Butler, Brandon (bcb4y)]

Hi y’all,

I think the key is to untangle two separate issues:


  1.  Does the law permit us to show the entire class this work (in any format)?
  2.  Does the law permit us to create an accessible version of a work for a qualified student?

The answer to (1) is almost entirely separate from (2). You mention showing the film “in class”—that’s actually the easiest possible use case: you can almost certainly show any film in class, period. The Copyright Act has a short, sweet provision at Section 110(1) that permits:

performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction.

The only limitation on this blanket “classroom screening” exemption is that the copy from which the performance is made must be “lawfully made.” This brings us to (2).

The answer to (2) is almost always “yes,” because the scope of fair use and the Chafee Amendment together covers almost every possible use case. (Chafee doesn’t actually cover audiovisual works at all, so you will need to rely entirely on fair use here. Such reliance would be quite reasonable, however, in light of the case law we have from HathiTrust.) The only prominent exception is the scenario where a work has been obtained subject to a license or other contractual arrangement that specifically prohibits creation of accessible versions. Ironically, services like Access Text Network are among the very few who impose those kinds of limits. One other limitation that could be relevant is the DMCA, which can prevent you from “ripping” DVDs, even for fair use purposes. However, an exemption to the DMCA<https://www.govinfo.gov/content/pkg/FR-2018-10-26/pdf/2018-23241.pdf> expressly permits ripping DVDs (and other encrypted media) by DSOs at educational institutions for purposes of captioning in compliance with disability rights laws.

Putting it all together: unless you have promised not to do so, the law will permit you to create a captioned version for a qualified student, and to show that version in class.

My friend Blake Reid wrote an interesting white paper about the broader issue of ‘third party captioning and copyright’ a while back. His paper pre-dates the DMCA exemption (which he was instrumental in securing, with his clinic students), so take that part of the analysis with a grain of salt—the DMCA is no longer a problem, at least for educational institutions. You can find it here: http://g3ict.org/download/p/fileId_1009/productId_320.

ARL also has an interesting blog post on the issue (written by one of my former students from the IP Clinic at AU Law School, Caille Morris) here: https://accessibility.arl.org/2016/04/captioning-and-copyright-law/. Again, the piece mentions a “bleak picture,” in part because they are talking about uses that go beyond simple in-class screenings, and in part because the DMCA exemption had not yet been adopted. The picture for Emma’s proposed use is quite bright!

I hope that helps,
Brandon

PS: This probably goes without saying, but this isn’t legal advice and I’m not your lawyer. 😊 Just a few friendly observations.
—
Brandon Butler | Director of Information Policy | University of Virginia Library<https://www.library.virginia.edu> | bcb4y at virginia.edu | 434.982.5874 | @bc_butler<http://twitter.com/bc_butler> | PO Box 400152, C'ville, VA 22904-0152 | 4105 Lewis & Clark Dr. #4066 |The Taper<http://thetaper.library.virginia.edu>|ORCID: 0000-0003-0190-6165<https://orcid.org/0000-0003-0190-6165>| he/him/his


From: athen-list <athen-list-bounces at mailman12.u.washington.edu> on behalf of Doug Hayman <dhayman at uw.edu>
Reply-To: Access Technology Higher Education Network <athen-list at u.washington.edu>
Date: Monday, February 10, 2020 at 6:18 PM
To: Access Technology Higher Education Network <athen-list at u.washington.edu>
Subject: Re: [Athen] Question about Chafee Amendment and Captioning

Emma,

Here at the University of Washington we have a bit more leeway than that in regards to captions.

If a student has an accommodation that would include providing closed captions for instructional content, then Disability Resources for Students (for matriculated students) or DSO, for non-matriculated students, would pay to have the captions created and do those in a timely manner to make the playing field even.  If those videos were hosted on YouTube and now had high-quality closed captions integrated with the content, then anyone could view them with greater accessibility.

Additionally, with Accessible Technology Services, we provide a service to create captions not covered by the above two groups to encourage closed captions as a best practice where the content will be reused and/or get viewed by many.

For content created and owned by internal players we can reach out to YouTube channel owners and help them make their content more accessible.

It gets a bit more tricky when instructors point at content created and owned by others external to our institution.  While they could request that that external YouTube channel owner toggle on the ability to contribute captions, or offer them the .srt caption file, they can't make them integrate them with their videos.  A few major caption creation firms offer up the ability to play those videos with a "skin" that streams that content while integrating captions.

I've suggested to a few of those top caption firms having a dialogue with YouTube or Vimeo to feature request something akin to external viewers being able to offer-up/add professional captions at no cost to the channel owner.  They argue oddly that they don't want to mess with the "artistic integrity" of the channel owner.  The default is bad auto-generated captions, or paying to caption your own videos.  I can't see where a third choice to approve professional quality captions for free would offend many channel owners.

Doug Hayman <dhayman at u<mailto:dhayman at u.washington.edu>w.edu<http://w.edu>>
Senior Computer Specialist
DO-IT Program (Disabilities, Opportunities, Internetworking, Technology)
UW Technology Services
Box 354842
Seattle, WA 98195
(206) 221-4165
http://www.washington.edu/doit

On Mon, Feb 10, 2020 at 2:52 PM Emma Steincross <ecsteincross111 at stkate.edu<mailto:ecsteincross111 at stkate.edu>> wrote:
Hello,

Our institution has some faculty, staff, and students who utilize ASL Interpreting and captioning for videos. Our Interpreter Coordinator said that her contact in Academic Technology has told her, the interpreters, and the faculty that videos he captions can only be made available to the specific student with a disability who requires them, that these "captioned videos can't be shown in-class because of the Chafee Amendment".

This has caused some confusion for our office and our UDL mindset. Why would an accessible version of a video be limited to only one student, instead of the faculty member being able to use this version for all students? Can faculty members not request captioned versions of videos to show their classes in-general? What if there were students in that class with disabilities who have either not yet registered with our office, or students for whom English is not their first language, who would also benefit for captions? What if this student with a disability doesn't have a laptop, so they can't view the captioned version anyway because it won't be shown in class?

Sorry for the somewhat-hypothetical, but still relevant, questions. I just haven't come across this before and don't know enough about the background or this amendment to be able to have helpful contributions. Any help is much appreciated!

Thanks,
Emma

Emma Steincross, M.A.
Access Consultant, Disability Resources
O'Neill Center | St. Catherine University
Phone: 651-690-6706
Pronouns<https://www.mypronouns.org/>: she, her, hers

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--
Doug Hayman <dhayman at u<mailto:dhayman at u.washington.edu>w.edu<http://w.edu>>
Senior Computer Specialist
DO-IT Program (Disabilities, Opportunities, Internetworking, Technology)
UW Technology Services
Box 354842
Seattle, WA 98195
(206) 221-4165
http://www.washington.edu/doit
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